The presidential elections in Poland are held every five years upon the order set out by the Marshal of the Sejm (which is the lower house of the Polish Parliament) unless for some reason, mainly due to death or resignation, a president's term ends prematurely. As the current five-year term of President Andrzej Duda will end soon, the incumbent Marshal of the Sejm, Elżbieta Witek, ordered to hold the presidential election on the 10th of May. Given the ongoing Covid-19 pandemic, the government proposed the idea to organise all-postal voting, unprecedented in Polish history, and initiated a bill to this end, which could enter into force only a couple of days ahead of the planned election. Critics, however, voiced serious concerns about the provisions of the bill, pointed to the institutional inability to organise the election in such a short time, and noted that it can still increase the risk of exposing electorates to coronavirus. Under mounting domestic and international pressure, the turbulent legislative process, and unparalleled political and legal incidents, the Polish government decided to postpone the presidential election and the Marshal of the Sejm ordered the election, for the 28th of June.
2. The government’s initial plan
The ruling Law and Justice (PiS) party was adamant on conducting the presidential election as initially planned, on the 10th of May by postal vote, and was very reluctant to take into consideration the critique received and follow suit of some 50 countries which decided to put off their elections (International IDEA, 2020). There is, of course, political background to that. Namely, the socially conservative PiS is in power in Poland since 2015 and boosted its majority in the lower house in the 2019 parliamentary elections, which resulted in a coalition government with the United Poland party. Interestingly, the main opposition party, the Civic Platform, and adversary of PiS won the majority in the Polish Upper House - the Senate. This current political arrangement only complicates matters and makes the legislative process in Poland more difficult.
Evidently, with the loss of the presidency, that possesses substantial powers, including the veto power in the legislative process (able to be overcome by the 3/5 majority in the Sejm, which PiS is lacking), it would be perilous for maintaining, the until now ‘controlled’ governance. Although the incumbent President Andrzej Duda, a PiS ally, wins in the polls, no one knows how the situation will evolve if the election gets postponed, especially in the prospects of the looming deep global economic crisis.
The government has decided not to introduce one of the extraordinary measures prescribed in Article 228(1) of the Polish Constitution (a state of emergency or a state of a natural disaster) lasting no more than 90 days, yet with the possibility of extension by the Sejm once for no more than 60 days. Instead, it is operating on the basis of the Act of 5th of December 2008 on preventing and combating infections and infectious diseases in humans (Journal of Laws of 2008, No 234, item 1570). This Act enabled the Minister of Health to issue the Ordinance of 13 March 2020 on the announcement of an epidemic emergency in the territory of the Republic of Poland, which, as argued by the ruling party, is sufficient for handling the epidemic (Journal of Laws of 2020, item 433). Importantly, it allows for restricting the freedom of movement, creation of ‘zero’ and ‘buffer’ zones, forced referrals to fight epidemics, restrictions or prohibitions on the marketing and use of certain items etc., yet, most significantly of all, it does not give rise to compensations (including for foreign companies) and does not require governance-sharing with local authorities, which would be the case if one of the extraordinary measures was implemented (See Article 228(4) of the Constitution, Act on the compensation of losses, Journal of Laws of 2002, item 1955). Importantly, choosing the alternative legal setting for crisis management, and not that provided in Article 228(1) does not ‘automatically’ postpone the presidential election (they could not have been held during the time of an extraordinary measure, as well as within the period of 90 days following its termination – Article 228(7)).
Admittedly, the government concurred with the experts’ opinion on the health hazard posed by conducting elections in a standard form. This alone has justified many of the restrictions imposed and cited the increase in coronavirus cases in France after holding the local elections in March 2020 in a standard form (Szczesniak, 2020). As an alternative, the government proposed the idea to hold the ballot by correspondence. The opposition, together with national and international institutions was alarmed that, although it was praiseworthy not to conduct elections in a standard form, the government’s persistence on conducting the election on the 10th of May in an alternative form was also inappropriate. First of all, because it could still pose danger to public health (delivery of ballots by postmen, posting the votes by leaving homes, counting the votes by commissions). Secondly, because Poland has never conducted the elections in the form of postal voting, the infrastructure was not prepared for it and there existed a risk that such elections would violate fundamental election process and undermine the democratic conception of the rule of law (Borys Budka, Gazeta Prawna, 2020; Kosiniak-Kamysz, TVN24, 2020; Leszek Miller, wiadomosci.wp.pl, 2020).
3. Mounting national and international pressure regarding the 10th of May election
Apart from the ruling party hardly anyone accepted the untested idea of voting in the midst of a pandemic. According to the poll on the 27th of April 2020, only a quarter of the Polish population agreed with the May election and the turnout was expected to be very low (IBRiS, 2020)
Lately, the leader of the main opposition party, Malgorzata Kidawa-Blonska announced that she will not stand for the election, should it take place in May (Lasocka-Krawczyk, 2020). Besides, nine former Polish presidents and prime ministers published an announcement on the 30th of April calling others to boycott the ‘pseudo election’ (Nycz, 2020). According to them, the election of the President of the Republic of Poland should be conducted in accordance with the provisions of the Constitution and ‘in a manner which raises no doubts as to their universality, equality, secrecy, and integrity’. They added that the pandemic throughout the country is an ‘obvious extraordinary state of natural disaster’, hence the government should act in pursuance of Article 228(1) of the Constitution and introduce the respective state reflecting the reality. They argued that the bill on the all-postal voting infringes on the basic tenets of the Constitution and the Sejm Regulations, consequently violating the rule of law.
‘Forcing’ the election has brought Poland into the international spotlight again. To cite our previous work in Lawyr.it (2016, vol.4. ed.2, pp. 43-47), the ruling party was criticised for its attempts to revamp the judicial system and causing a deadlock in the Constitutional Tribunal. Regarding organising the 10th of May election, the pessimistic voices flew from such organizations as the European Commission, the Organisation for Security and Co-Operation in Europe’s Office for Democratic Institutions and Human Rights (ODIHR), Amnesty International, and the Human Rights Watch. Didier Reynders, European Commissioner for Justice, suggested that the issue of the Polish presidential election should be addressed by the EU Council parallel to rule of law concerns considered under Article 7 of the TEU - a procedure that could theoretically lead to sanctions against Poland (News, European Parliament, 2020). Viera Jourova, Vice President of the European Commission, announced that there are no plans of incorporating the issue of the election under Article 7, yet she remained very concerned about the freedom and fairness of the 10th of May election as well as the protection of personal data during the organization of such an election (Polandin, 2020).
The (ODIHR) in its Opinion on the Draft Act on Special Rules for Conducting the General Election of the President of the Republic of Poland ordered in 2020 (Senate Paper No.99), noted that the bill allowing for the organisation of a nationwide election solely by means of postal voting was initiated a little bit more than a month before the date of the planned election (10th of May) and that such profound changes diverge from the principles of stability of electoral legislation and legal certainty. It is worth adding that the Constitutional Tribunal has also interpreted Article 2 of the Polish Constitution concerning the democratic and rule of law principles of the state to include the principle of decent legislation. Accordingly, changes in the electoral law may be made no later than six months before the commencement of electoral procedures (Judgment K9/11). The ODIHR opinion also remarked the fact that the proposed bill transfers the responsibility for critical aspects of the electoral process from the National Election Commission (NEC) to a government ministry with no prior experience in electoral administration. The bill also envisaged a change in the structure of election administration and methods of appointment of precinct election commissions. All this may create additional uncertainty and weaken public trust over the conduct of free and fair elections.
Human Rights Watch and Amnesty International pointed out that the 10th of May presidential election would be contrary to generally accepted international standards (Human Rights Watch, 2020; Amnesty International, 2020). Namely, the state has a duty to ensure that all persons involved in the electoral process are able to exercise their rights and freedoms without any obstacles. Given that the coronavirus crisis is extraordinary, the very attempts to hold the election should be avoided in the first place. In fact, the candidates cannot lead their campaign, organise meetings and directly present their programme, which would be possible in times without the lockdown restrictions. In that situation, the sole beneficiary is the incumbent president, who, by performing his duties indirectly leads the campaign and in that has great support of the public media.
4. Ruling coalition's last-minute deal, legislative gymnastics, and the withdrawal of the opposition candidate
With the pandemic developing rapidly, increased external pressure, and the Senate taking a long time on ‘improving’ the bill proposed by the Sej, the initial plan of holding the election on the 10th of May started to become more and more unrealistic. Moreover, the leader of the United Poland party, Jaroslaw Gowin, threatened that he will not vote for the bill when it returns from the Senate (Gazeta Prawna, 2020). In view of that, and after tense conversations, both leaders of the parties constituting the government (Jaroslaw Kaczynski – PiS and Jaroslaw Gown – UP) signed an agreement on the 6th of May to move the election (Dereszynski, 2020). On the following day, the ruling coalition approved the bill for the election to be held via postal ballot in the Sejm by a majority of 236 votes (231 was needed). Yet, the election, according to the deal, could not take place in three days. The question then appeared, how to justify the move of the election in terms of the law? The proposition surfaced that the Supreme Court will just declare the election invalid. But how to declare something valid or not if it did not take place, asked many? Constitutionalists argued that the Supreme Court is empowered to take a stance only on the voting and election results which have to be provided by the National Electoral Commission and published in the form of an announcement in the Journal of Laws (Piotrowski, Chmaj, 2020). Since there is no such announcement, the Supreme Court cannot do anything in the case – cannot consider any counterarguments.
The next variant which was on the table was that the incumbent president resigns from the post before the end of his tenure and this would automatically provide a legal basis for the promulgation of the new election (Chmaj, 2020). This variant was not, however, chosen. The last possibility was enshrined in the Electoral Code and presupposed that the National Electoral Commission (NEC) in its resolution declares that the election did not take place. This indeed happened and the NEC in a way helped the ruling camp to cut the Gordian Knot. On the 10th of May, the NEC declared that the inability to vote in the election is equivalent in effect with Article 293 paragraph 3 of the Electoral Code, confirming the inability to vote due to the lack of candidates. In NEC’s opinion, it means that the Marshal of the Sejm should re-order the election no later than 14 days after the publishing of the NEC resolution in the Journal of Laws. The election will have to take place within 60 days of the mentioned publication.
Having resolved the issue of reordering the presidential election, the problematic aspects of the approved bill providing for postal voting reverberated again. In response, the Sejm initiated a new bill on the 12th of May, which provided for hybrid voting (both in-person voting and postal ballot), gave exclusive competences to the National Electoral Commission for the organisation of the election and relieved the already registered candidates from the obligation of collecting 100.000 signatures for registration (Draft 368-A). The Senate proposed 36 further amendments, to give new candidates 10 days for the collection of signatures, to oblige the Marshal of the Sejm to consult the election calendar with the NEC, to extend from 16 to 21 days the consideration of counterarguments by the Supreme Court, to extend from 3 to 5 the number of the district electoral commission, to mention but a few (Draft 399). The Sejm, when the bill returned to it on the 1st of June, however, rejected the majority of these amendments. On the 2nd of June, the President signed the bill and Poland got the legal basis for the upcoming election (Journal of Laws of 2020, item 979). On the 3rd of June, the Marshal of the Sejm re-ordered the election for the 28h of June.
This officially ends the saga of the Polish presidential election in the midst of the pandemic. Yet, a political and legal spectacle put many Poles in consternation and left deep scars. People did not know for a long time when they will choose their president and in addition received a bill of a couple of million PLN for the ballot papers printed beforehand, given that the main opposition party changed its candidate from Malgorzata Kidawa-Blonska to Rafal Trzaskowski – a maneuver allowed due to the fact of the new election.
Considering the international public health emergency declared by the WHO on the 30th of January 2020, and multiple uncertainties in which the unprecedented proposition of all-postal vote was shrouded, it is good that the deal was struck among the ruling coalition parties to abstain from conducting the presidential election on the 10th of May 2020. Both the bill which would form the legal basis for carrying out the election and the election process had weak normative and legitimacy foundations. The president, if elected in such an election, would face international ostracism, which would not be beneficial for the reputation of a country. That is why it is commendable that the election has been postponed for the summer when the coronavirus crisis will be better controlled, and life would slowly get back to normal. This move is also prudent because the election process, including the campaign, can be more comprehensively prepared, while the alluded discrepancy between maintaining the principle of the continuity of State authority and rule of law was eliminated. Yet, it would be advisable that all political parties work early towards the resolution of a crisis like that, not allowing the constitutional havoc, uncertainty among the population, and triggering unnecessary financial costs.
By Sava Jankovic and Sumeet Jalgaonkar
This material was published in Lawyr.it Vol. 6, September 2020, available only online.
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