COMMENT: How deep is the crisis in Poland’s Law and Justice party?

COMMENT: How deep is the crisis in Poland’s Law and Justice party?
Law and Justice’s election defeat dealt a severe blow to Kaczyński’s authority and he is clearly starting to show his age and is often too easily provoked into making highly controversial and provocative statements. / bne IntelliNews
By Aleks Szczerbiak in Brighton March 11, 2024

While Poland’s right-wing opposition faces a serious crisis following its loss of office, it retains many important political assets and most of the ferment is on the party’s fringes rather than at its core. But the situation is a dynamic one and further election defeats could bring things to a head.

Last December, after eight years in office, the right-wing Law and Justice (PiS) party lost power following its October parliamentary election defeat. Although it emerged as the largest political grouping with 35% of the votes, Law and Justice only secured 194 seats, falling well short of the 231 required for an overall majority in the Sejm, the more powerful lower parliamentary chamber.

For sure, the party retains a number of important political assets, including access to substantial state party funding, a relatively well-developed grassroots organisational network, and the largest ever opposition legislative caucus in post-communist Poland, comprising a large number of experienced parliamentarians.

The party also has a strong social base with distinctive and clearly defined socio-demographic constituencies that reflect deeper ideological and cultural divisions within Polish society. The party’s elites are united by a powerful integrative ideological narrative rooted in a conservative-national project, at the heart of which is the need for the radical reconstruction of the Polish state. This, together with its programme of generous social transfers, has provided the party with a sense of cohesion and purpose and bound it closely to its core voters.

Until summer 2025, the new coalition government, led by the liberal-centrist Civic Platform (PO) grouping, has to ‘cohabit’ with a Law and Justice-aligned president, Andrzej Duda, and lacks the three-fifths parliamentary majority required to overturn his legislative veto. All 15 members of the constitutional tribunal, a powerful body that can strike down laws if it deems them to be unconstitutional, were elected by the Polish parliament during Law and Justice’s term of office.

However, Law and Justice is losing support, currently averaging around 30% according to the Politico Europe aggregator of Polish opinion polls, behind Civic Platform on 33%. With important local elections coming up in April and to the European Parliament (EP) in June, some commentators say the party faces one of its most serious crises. Local elections have always been difficult ones for Law and Justice because much of the media focus goes on the high-profile mayoral contests in larger towns and cities where the party has virtually no prospects of winning.

In fact, as the only local government tier contested on national party lines, the aggregated vote share in elections to the 16 regional authorities is the key barometer of party support. Regional councils also play a major role in distributing EU funds and are a key source of local party patronage. In autumn 2018, Law and Justice won 34% of the vote in this tier with an outright majority in six authorities, and secured control of a further two thanks to a defection in one and a coalition with non-party independents in another.

The problem for Law and Justice is that it has weak coalition potential, so if it does not win outright majorities it will struggle to find partners to retain control of these authorities, even if it remains the largest party. In 2014, for example, Law and Justice won the most seats in six regional assemblies but only ended up controlling one of them, the Podkarpacie region. This time, its only viable local coalition partners are the radical right Confederation (Konfederacja) party and non-party independents, both of whom are unreliable and will struggle to secure representation at this tier. Law and Justice will do very well to retain control of even three regions, and in a nightmare scenario could actually lose its Podkarpacie stronghold.

Focusing on the wrong issues?

Parties that have just suffered a parliamentary election defeat often perform badly in so-called ‘second order’ polls held in its immediate aftermath. Their supporters are de-moralised and much less likely to vote than those of the victorious parties that are still enjoying a post-election honeymoon. Moreover, since the new government was installed, Law and Justice has spent a lot of time focusing on issues that consolidate its already-convinced hard-core supporters (and, even then, largely the most loyal ones) rather than broadening its appeal.

For example, the party expended a great deal of energy defending two former ministers, Mariusz Kamiński and Maciej Wąsik, who in January were jailed for abuse of power while heading up the Polish central anti-corruption bureau (CBA) in the mid-2000s. They then had their parliamentary mandates revoked, before being released following a presidential pardon. Law and Justice tried to use their case to argue that the new government was running roughshod over the constitution and the ‘rule-of-law’, citing the fact that it refused to recognise as legitimate an earlier presidential pardon, and rulings by a supreme court chamber and the constitutional tribunal favourable to the two politicians.

The party also cited what it argued were other examples of the new government acting illegally and unconstitutionally, including: its takeover of the state-owned media; the removal of senior prosecutors appointed by the previous government; and its plans not to recognise judges and constitutional tribunal members installed under the previous administration. (The new government says that its actions are legal and that the earlier appointees were nominated improperly).

The problem for Law and Justice is that opinion polls show that a clear majority of Poles feel that Kamiński and Wąsik were right to be convicted and deprived of their parliamentary mandates. For sure, even some Law and Justice critics feel uneasy about the legality and constitutionality of certain of the new government’s measures to unravel its predecessor’s legacy and replace its elite appointees. However, the government’s most controversial measures are only really unpopular among the Law and Justice hard-core, and the new administration’s supporters appear to have largely accepted its ends-justify-the-means logic: that they sometimes need to take legally questionable short-cuts to ‘re-build democracy’ and ‘restore the rule-of-law’; as, apparently, does the EU political establishment and much of the international opinion-forming media (even though it has echoes of Law and Justice’s ‘transitional justice’ justificatory logic for its own earlier systemic reforms and elite replacement policies).

Moreover, as the current governing parties found when they were in opposition, it is difficult to mobilise voters around such constitutional issues because Poles often find them too abstract and complicated, and have anyway got used to politicians accusing their opponents of violating the constitution and ‘rule-of-law’.

The post-election period has also seen a weakening of Law and Justice leader Jarosław Kaczyński’s standing as the dominant figure on the Polish right. Kaczyński was widely admired, even among his critics, as a skillful and effective political visionary and strategist, and his continued hegemony provided a crucial source of unity and cohesion within the right-wing camp. However, Law and Justice’s election defeat dealt a severe blow to Kaczyński’s authority and he is clearly starting to show his age and is often too easily provoked into making highly controversial and provocative statements.

Some right-wing politicians and commentators have openly called for him to resign. However, all of the proposed alternatives appear to lack his authority to keep the party united. So last month Kaczyński announced that that he would run again for the party leadership, having previously said that he would stand down at its next congress, scheduled for 2025.

Another problem is that there does not seem to be any co-ordination between Law and Justice and the presidential palace. This is in spite of the fact that Duda is currently the most powerful right-wing politician in Poland, and remains both emotionally and intellectually committed to key elements of the party’s radical state reform programme. More broadly, Duda’s critics argue that he is not interested in, nor capable of, high level political strategising and manouvering. Rather than having a well thought-through and coherent plan on how to set the political agenda, Duda is, they say, constantly on the back-foot, simply reacting to the new government’s initiatives.

On top of this, there are concerns within Law and Justice about possible revelations that might emerge from a special parliamentary commission set up in January to investigate allegations that the previous government mis-used the Pegasus spyware programme to eavesdrop on its opponents. The commission is one of three high-profile parliamentary investigations initiated by the new government as part of a so-called ‘reckoning’ (rozliczenie) with the Law and Justice’s administration’s alleged abuses of power.

While experience suggests that Poles often become quickly bored with these kinds of attempts at settling accounts with previous governments, this particular commission has the most potential to cut-through through politically because of allegations that the Law and Justice government used the spyware system against its own ministers and other leading figures within the party. For its part, hoping that the issue will run out of steam, Law and Justice denies these allegations vigorously and argues that its use of the Pegasus system was legal and served to bolster Poland’s security.

New government's weaknesses

Although many Law and Justice leaders know that adopting a combative and un-comprising approach was ultimately a dead end for the party, they also felt that party’s short-term priority had to be maintaining unity and cohesion within its own ranks rather than reaching out to a broader electorate. However, Law and Justice’s recovery depends ultimately on convincing Poles that the new government’s policies will have negative consequences for them personally.

Not only has concentrating on issues where it is on the wrong side of public opinion meant that the party has avoided difficult internal debates about how it can renew itself and reach out to new voters, it has also over-shadowed the party’s message on more salient socio-economic questions where the new government is potentially much more vulnerable. For example, polling shows strong cross-party support for Law and Justice’s programme of large, flagship state investment projects such as the planned Central Communication Port (CPK) mega-airport and rail hub between Warsaw and Łódź, which the new government has paused while it is conducting an audit.

The government is also vulnerable to the charge that it is failing to deliver on all of its election promises such as: radically increasing the annual tax-fee income threshold to PLN60,000, and reducing health insurance premiums for businesses. One government minister suggested that the one hundred promises that Civic Platform pledged to fulfill in its first 100 days in office (‘100 konkretów na 100 dni’) were not meant to be taken literally!

Indeed, although the new government came to office following a record turnout in a post-communist Polish election, there is also evidence of a lack of enthusiasm for it. For example, a February poll by the Ipsos agency for the liberal-left portal found that only 38% of respondents said the election had changed Poland for the better, 32% for the

Law and Justice clearly faces its most serious crisis for many years and every scenario is possible, including the party imploding and not surviving in its current form. However, there is little immediate prospect of a major split as, for the moment, most of the ferment is taking place on Law and Justice’s fringes rather than at its core. The leadership’s current strategy is based on maintaining the right-wing camp’s internal unity and cohesion, and particularly retaining enough parliamentary support to uphold presidential vetoes single-handedly.

The new government’s radical ‘reckoning’ policies have actually bound the core of the party somewhat closer together. Nonetheless, the situation on the Polish right is a dynamic one and could come to a head if anticipated local, and probably EP, election defeats further undermine Law and Justice’s cohesion and morale ahead of next summer’s really crucial presidential poll.

Aleks Szczerbiak is Professor of Politics at the University of Sussex. This article first appeared on his blog here.