Wojciech Sadurski. Poland’s Constitutional Breakdown. Oxford University Press, 2019. Pp. 304. ISBN 978-0198840503
The book’s title refers to the expression “constitutional breakdown”, which seems to reflect the author’s profound thoughts regarding the process of unconstitutional actions that one can observe in Poland following the accession to power of the Law and Justice Party (PiS). The mastery of this study lies in the excellent combination of the descriptive layer with general theoretical considerations. The author, describing the course of events, seeks to conceptualize the Polish case by referring to both older and more recent views of scholarship regarding the erosion of democracy and violations of the rule of law. In this sense, despite the personal tone, often verging on emotional, Sadurski’s work is a contribution of major significance to contemporary scholarship on constitutional law.
Sadurski describes the situation in Poland is as an “anti-constitutional populist backsliding”. All aspects of this notion have precise connotations and explanations. Its anticonstitutionalism is diverse and, according to Sadurski, has three dimensions. First, it is associated with the concentration of political power in the hands of the leader of the ruling party, who, at the same time, does not hold any significant state functions other than his role as a private MP. Therefore, the pathology of this phenomenon is that incumbents of constitutional organs are merely figureheads executing the will of the leader—Jarosław Kaczyński. In this way, a non-constitutional center of political disposition has been created, and the card-dealer Kaczyński has neither political nor constitutional responsibility. Second, PiS’ power is exercised by means of an unequivocal violation of constitutional norms, and third, it involves, in practice, an amendment of the constitution by means of ordinary laws, without the requirement of a constitutional majority. The populist component, in turn, is that PiS acts by focusing on vox populi, and huge support from the masses is vital to it. For this reason, simple economic slogans are selected for the banners, which must be enthusiastically welcomed, at least by the sector of society that hitherto has not sufficiently benefited from the political and economic transformation.
Sadurski’s approach—defining the Polish political system through the prism of a concept that refers to a stretched-in-time process—seems to be the most appropriate. This is because, as we learn from his book, the erosion of the democratic state’s institutions means that Poland is, at present, somehow suspended between democracy and authoritarianism. Thus, perhaps, the central concept around which the book’s narrative revolves is the adjective “incremental”. This means that the demolition of the rule of law is composed of gradual actions, which should not necessarily be perceived as particularly dangerous and spectacular in isolation, but, in their intensity, undoubtedly lead to the gradual deterioration of the institutions of a democratic state ruled by law. The specific sequence of events is intentional, and aims to accumulate as much power as possible, simultaneously creating the impression, despite the speed of this action, that no institutional change has occurred. In this particular sense, the Polish mode of retreat from democracy is not a phenomenon particular to today simply because it fits into the picture of today’s autocrats. Legal institutions and relevant procedures are not simply abolished or openly contested; on the contrary, their competence is hollowed out, so, in practice, they become a kind of caricature of what they constituted before. In Poland, this happened not only with the institutions that are typical of constitutional and liberal democracy (including control organs, the constitutional court, and the judiciary) but also occurred with bodies of a strictly political nature, such as the parliament. The violation of constitutional and legal provisions usually takes place early in the process of undermining democratic rules, and as time passes, legal regulations are intended to protect those who are in power (rule by law versus rule of law). Therefore, it is often said today that democracies die in the dark. Sadurski points out that we do not need tanks on the streets or thousands of political prisoners to strengthen authoritarianism (p. 7). This can happen in a completely evolutionary way, without any particular critical point. The evolutionary character of the undemocratic shift corresponds with Steven Levitsky and Daniel Ziblatt’s metaphoric description (quoted by Sadurski) of the methods of today’s authoritarians who “use in order to consolidate their power: capturing the referees, sidelining the key players, and rewriting the rules ‘to tilt the playing field against opponents’”.
The book’s structure is subordinated to the incremental character of Poland’s democratic erosion. It is composed of nine chapters that chronologically recount the dismantling or weakening of the state institutions responsible for necessary checks in the constitutional system. The book concludes with a short afterword. Chapter 1 is sacrificed to the abovementioned considerations indicated in the volume’s title. In Chapter 2, Sadurski recounts the process of constitution-making in Poland after 1989 and seems to argue that, prior to PiS coming to power in 2015, Poland was one of the most successful states as far as the reception of democratic institutions is concerned. Despite the evident occurrence of insufficiencies and certain hostile acts against the constitutional structure conducted in the first period of PiS rule (2005-07), the country was firmly on the road toward consolidated democracy. The subsequent two chapters describe in detail the encroaching machinery of destruction: from the demolition of the Constitutional Tribunal to the actions leading to the subordination of the judiciary. Capturing the Constitutional Tribunal entailed several unconstitutional steps, including elections unduly held for the positions of constitutional judges already filled, an obstruction of the independent tribunal by odd statutory amendments, and, after reaching the necessary majority of judges, turning this institution into a governmental enabler. Among the measures referring to the court system, Sadurski describes the hijacking of the National Council of the Judiciary and the introduction of new chambers to the Supreme Court filled with pro-PiS members. After presenting how legal institutions were captured, the author turns to depict the decline of political mechanisms of checks and balances (Chapter 5). This involved limiting the role of parliamentary discussion as well as taking over the public media to launch massive propaganda. In Chapter 6, one can find a reference to political rights infringements, not yet immense in their character but including significant restrictions of the right to assembly and freedom of speech as well as privacy rights. Sadurski does not avoid analyzing the reasons for the constitutional backsliding (Chapter 7). Perhaps one of his most controversial judgments is that PiS’s victory in 2015 was not primarily due to existing social inequalities. A closer look at the electorate structure, he argues, shows that the poorer layers of society did largely not support PiS. Instead, key was an identity-related conglomerate of anti-elite, xenophobic, and antimodernist narratives, which produced a political program based on these kinds of prejudices. Sadurski’s approach is accurate because he strictly distinguishes the reasons for PiS’s victory in the election in 2015 from the factors that have significance for the growth in support for the ruling party. PiS popularity is very high at present as its social-economic agenda and several social transfers are significant for many voters. One can even argue that only thanks to these, the more controversial (and, in many cases, badly received, even by PiS supporters) measures could be implemented. At the same time, Sadurski considers the question of the institutions’ fragility under the conditions of undeveloped democratic political culture. He argues that, “(i)nstitutions must be underwritten by norms that are mostly shared, and by common understanding about what counts as a norm violation, even if formal legal rules are silent about it. No institution can survive without a reasonable consensus about norms” (p. 186). In turn, Sadurski, in Chapter 8, refers to the European organs of intervention (i.e., the Venice Commissions’ opinions, the Art. 7 TEU mechanism, as well as the judgments of the CJEU). Together, these institutions and mechanisms provide important and promising institutional support for domestic fights for the rule of law.
The brilliantly written ninth chapter “Illiberal Democracy or Populist Authoritarianism” summarizes the considerations outlined earlier, and thus requires more attention. I agree with the author that the term ‘illiberal democracy’, at least in reference to Poland, appears to be nothing other than an oxymoron. The democratic resolution of issues requires the decision of the majority. However, it also requires a situation in which it is possible for all political players to present their arguments in an unrestricted manner. Meanwhile, the situation in Poland is not encouraging in this respect. Any view opposing the government camp is presented as hostile to the community or to the nation. Second, Sadurski clearly and rightly indicates that the Polish case in no way illustrates a departure from legal constitutionalism toward the so-called political constitutionalism. Supporters of the latter, such as John Griffith, Paul Blokker, and Richard Bellamy, highlight the prioritization of political fora for discussion and of political over judicial control mechanisms. In Poland, however, according to the analysis presented by Sadurski, not only are judicial checks and balances reduced and undermined, but so are political ones, which weakens the authority of representative institutions. It must be said that Poland’s parliament does not make decisions about anything at the moment. It has become a machine for rubber stamping decisions undertaken by the center of political disposition led by Kaczyński. Although Sadurski clearly states that the current situation does not constitute a return to communism or real socialism times, it is hard not to notice some reminiscences in this respect. In the People’s Polish Republic the constitutional organs, including the parliament, functioned only theoretically. The latter was formally the highest state body, which was associated with the doctrine of the uniformity of state power, characteristic of Marxist constitutionalism. Ultimately, however, it was the communist party’s politburo, which took decisions about everything. Sadurski also believes that references to Guillermo A. O’Donnell’s concept of delegative democracy may also be misleading. According to O’Donnell, the term means that an election’s winner “[is] entitled to govern as he or she sees fit, constrained only by the hard fact of existing power relations and by a constitutionality limited term of office”. The problem, however, is that in O’Donnell’s concept a certain democratic component is evident, while only the liberal nature of such a political system disappears. Yet, Sadurski rightly points out that the actions of the Polish ruling party, questioning the moral legitimacy of other political entities to speak on public affairs, entail the disturbance of free and unrestrained party competition. This is accompanied by legal interference in the voting law mechanisms, which provide a tool for electoral manipulations should one observe a radical drop in confidence in PiS in the future. Sadurski points out that “democracy minus the equal rights to free assembly, free media, constitutional courts, independent electoral commissions, and other checks on arbitrary power degenerates into autocracy” (p. 243). This does not mean, of course, as I assume, for Sadurski, that political systems that cannot be called democratic may only be described as authoritarian and, in this sense, lumped together. Authoritarianisms are gradual, depending on the form of limiting democratic institutions and restrictions on civil rights and freedoms. From Sadurski’s perspective, as I perceive it at least, it is much better to speak about various authoritarian types of contemporary political systems than to distinguish between some competitive types of democracy. In this sense, Sadurski appears—in terms of nomenclature—to be more radical than, for example, T. Ginsburg and Aziz Z Huq, though he admits that he does not wish to generalize his finding (p. 242). The abovementioned authors write about liberal constitutional democracy and various other forms of democracy. These other forms however, in the authors’ views, have so many flaws that they are at a morally lower level. Yet, Sadurski would probably agree with them that core elements characteristic of Western culture may gradually disappear, which may, in practice, lead to a functioning political system that may be defective concerning any one of them—liberalism, constitutionalism or democracy—or because all three are missing.
The summarizing chapter contains two points which, from my point of view, require polemics. The first is connected with Sadurski’s observations concerning, as he called them, “unwritten norms”. He seems to suggest that, apart from strictly legal rules, some other constitutional norms in Poland are not legal, at least, in a strict sense, but are political in nature, and are also often abused by PiS. One example of such an action, according to Sadurski, was the amendment of the statute on the National Council of the Judiciary in such a way that judicial members of the Council are no longer required to be elected by representative bodies of judicial self-government, but by the first chamber of parliament (Sejm). Sadurski textually analyzes the provision of the constitution that refers to the Council’s elections, emphasizing that it is not explicit. He reconstructs, in turn, a kind of a political norm according to which these judicial members should themselves be elected by judges. Sadurski, despite his immense theoretical knowledge about the legal system of Poland, seems to automatically relate Commonwealth approaches to the Polish constitutionalism. The argument that PiS breaks political norms may, contrary to Sadurski’s intentions, even diminish its guilt. One can ask in many situations: do they really break constitutional law as such? A reader may equally have the impression that the Polish constitution, apart from textual legal norms, is also composed of norms similar to Anglo-Saxon constitutional conventions. However, political norms of this nature have never been treated as elements of the Polish legal culture. Meanwhile, constitutional provisions should be subject to functional, teleological and holistic interpretation. This means that the contents of the norms that Sadurski refers to are the result of the process of pure legal construction, and they are “very legal” indeed. This means that, in many cases, incumbents of the state organs simply committed constitutional torts or criminal offenses. My second critical comment concerns certain inconsequence in searching for the proper description of the radical undemocratic shift in Poland. In this respect, Sadurski, on the one hand, rejects the idea that populist and autocratic rulers may petrify their power due to free elections because the core element of their authoritarianism is to undermine and, ultimately, destroy free political discourse. On the other hand, despite his criticism of all PiS’s actions in this respect, Sadurski is surprisingly rather supportive of the term ‘plebiscitary autocracy’ in relation to Poland, which is somehow contrary to the aforementioned criticism of O’Donnell’s concept. Sadurski writes (citing S. Issacharoff) that “Elections under a completely controlling party, even if unattained by rampant fraud or violence are in substance no different from the plebiscite” (p. 248). Sadurski emphasizes further (referring to Poland) that “By providing generous welfare provisions, as well as an elaborate system of patronage and spoils, and a sense of pride based on restrictive-nationalistic rhetoric and a sense of protection based on fear of immigrants the government posits to the voters a Faustian bargain for the net benefit of confirming the government’s place in power despite its constitutional non-compliance” (p. 249). It means that this plebiscitary form of government would preconceive from the beginning a dishonest act of direct democracy. Thus, the utility of the concept of “plebiscitary autocracy” is similar to “delegative democracy”, though I agree with Sadurski that the former corresponds more closely to the Polish situation. Nevertheless, both notions, unfortunately, give the illusory impression that it is possible to find some legitimate democratic consent to this phenomenon, which, of course, is misleading.
In the afterword, Sadurski tries to convey some optimistic element amidst the gloomy vision of the titular evocation of Poland’s constitutional backsliding. An important point is that “Populisms, such as PiS’s, often carry a seed of self-destruction: they are, in the long run, ineffective and counterproductive, relying on the knowledge (imperfect) and charisma (doubtful) of a single person. With its paranoid excesses and narrow epistemic base, populism has a low capacity for effective governance” (p. 268). The second hopeful point, however, is that although the assembled knowledge about dismantling democracy and the rule of law may, on the one hand, serve as a playbook for authoritarians, on the other hand it “is also empowering and illuminating to those who advocate, strategize or are involved in resistance to today’s enemies of democracy” (p. 270). Looking at the results of the parliamentary elections of October 2019, one may experience mixed filings about this optimism. PiS, due to the D’Hondt allocation system, were able to secure majority of seats in the Sejm, and will remain in power for another four years. This undeniably heralds further degradation of democratic rules and institutions. Nevertheless, democratic, anti-PiS parties combined received 48.51 percent of valid votes versus PiS’s 43.59 percent, while the democratic opposition won a majority of 51:49 seats in the second chamber.
Sadurski’s monograph is remarkable from both the informative and research perspectives. Undoubtedly, scholarship in constitutional law and theory of law has received an extraordinarily valuable volume. It is indeed a must-read.
 This argument resembles Tom Ginsburg’s and Aziz Z. Huq’s point that ‘democratic erosion is typically an aggregative process made up of many smaller increments’. Tom Ginzburg and Aziz Z Huq, How to Save a Constitutional Democracy 24 (2018),
 Piotr Mikuli, Attacking Judicial Independence Through New “Disciplinary” Procedures in Poland, Int’l J. Const. L. Blog, Apr. 9, 2019, at: http://www.iconnectblog.com/2019/04/attacking-judicial-independence-through-new-disciplinary-procedures-in-poland/
 Steven Levitsky and Daniel Ziblatt, How Democracies Die177 (2018)
 Guillermo O’Donnell, Delegative Democracy, 5/1 Journal of Democracy 55 59 (1994)
 Tom Ginzburg and Aziz Z Huq, How to Save a Constitutional Democracy 24 (2018)