As Poles prepare to go to the polls on 10 May 2020, Aleksandra Kustra-Rogatka, Associate Professor at Toruń’s Nicolaus Copernicus University and 2019-2020 re:constitution Fellow, answers our questions on the presidential elections and connected rule of law issues.
What is the rule of law situation in Poland?
The rule of law has been systematically undermined since the election of the Law and Justice party (PiS) in Autumn 2015. In addition to controlling the Polish parliament, the country’s President Andrzej Duda was elected as PiS’s presidential candidate in May 2015 and has been a strong ally to the governing party, despite resigning from the party to govern as nominally independent before taking the oath of office.
Since 2015, the Constitutional Tribunal, the National Council of the Judiciary, common and administrative courts, and the Supreme Court have been targeted. These changes were considered by many to be unconstitutional and in violation of European and international law.
The controversial nature of these reforms comes not only from their questionable constitutionality but also their clashes with EU law, including Article 19 of the Treaty of the European Union and Article 47 of the Charter of Fundamental Rights. This conflict led both the European Commission and various Polish courts to refer these changes to the European Court of Justice. The number of these cases has been constantly growing.
So far, there were two landmark judgments by the ECJ in which it found violations of EU laws: one on the retirement age of judges, which you can read more about here, and the 19 November 2019 judgment on the legality of the National Judiciary Council and the Supreme Court Disciplinary Chamber, which you can read more about here. Also, on 8 April 2020, the ECJ issued an interim measure ordering Poland to suspend any actions by the Supreme Court Disciplinary Chamber until a judgment was issued in the case brought forward by the European Commission concerning the protection of judges from political control.
What has been the impact of emergency measures introduced to counter covid-19?
Like many other countries, Poland has introduced measures to slow the spread of covid-19, such as the closure of restaurants, bars, universities, schools and kindergartens. The government has also significantly restricted freedom of movement and recently made wearing masks in public mandatory. However, there have been reservations on the legal basis for some of these measures.
To enact these emergency measures, the Polish government has declared a ‘state of epidemic’ to counter covid-19 and restrict fundamental rights and freedoms, notably the right to movement. This state is covered by the Act on preventing and combating infections and infectious diseases adopted in 2008.
The Polish authorities have not yet announced a state of natural disaster – one of three states of emergency enshrined in the constitution. Declaring a formal state of emergency would automatically postpone any planned elections and keep the existing parliament in place until at least 90 days after its termination. However, the government, confident in winning the presidential elections, wants to hold them as quickly as possible.
How does the ruling party see the presidential elections proceeding?
The ruling PiS has decided to hold the presidential elections on 10 May despite the public outcry at holding elections at the height of a pandemic. This was made official when the government passed a measure enabling generalised voting by post as part of wider measures to counter the coronavirus and stimulate the economy.
However, the adoption of this measure by the Polish parliament, about one month before the planned elections, violates several constitutional standards established through the Constitutional Tribunal over time (one caveat here, is that this jurisprudence predates the capture of the tribunal and transformation into a government enabler).
Specifically, the move to a postal vote breaches a prohibition on making changes to the electoral law less than six months before an election and a ban on hiding new laws under the guise of amendments to an existing draft.
Furthermore, the measure does not comply with numerous constitutional principles regarding elections: universality (there is not enough time to prepare voter lists, Poles will not be able to vote from abroad), equality (candidates cannot campaign during the lockdown, except for the incumbent president who can travel) and the secrecy of the ballot (a voter would need to write their ID number on the ballot sheet).
Finally, this measure undermines the authority of the National Electoral Commission, with the organisation of the 2020 elections essentially relegated to the Polish postal service.
What options are we facing for the presidential elections?
It is not clear how the situation will unfold, but three main options are emerging so far: the PiS-favoured option of a postal vote, the extension of presidential terms in office through a constitutional amendment, and political manoeuvring to postpone the elections.
A. Postal voting
As mentioned, the ruling party has passed a law enabling nation-wide postal voting as part of its anti-coronavirus measures. In addition, a bill to implement postal voting was approved by the lower house, the Sejm, but is still under review by the opposition-controlled Senate.
It is unlikely that the law will be passed in time for the elections, as the Senate is likely to send the bill back to the Sejm with amendments just before the elections.
Despite the lack of legal basis for the organisation of the elections, Prime Minister Mateusz Morawiecki has already ordered the Polish postal service and the national printer to move forward with the preparations of mail-in ballots. Under this scenario, the government would likely push the elections through regardless of whether the second bill passes through parliament or not.
B. Extending the President’s term of office through a constitutional amendment
The plan to hold the presidential elections on 10 May have ignited a dispute within the ruling camp. Deputy Prime Minister Jarosław Gowin, head of a smaller party forming part of the ruling coalition, has resigned in opposition to the planned elections.
At the same time, he proposed a constitutional amendment that would extend the current President’s term in office by two years. The draft formally submitted to the Sejm provides for a change to the President’s term of office from five to seven years, while removing the ability for incumbents to seek re-election.
Crucially in the current context, the proposed change would also apply to incumbent President Duda and states clearly that the passage of this amendment before the end of the term of the incumbent President would nullify the 10 May elections.
It is very unlikely, however, that a constitutional amendment will be passed before the elections.
C. The Senate blocks the proposed electoral law
Gowin’s proposed constitutional amendment has been rejected by most of the opposition. However, opposition parties have begun negotiations with his party when his opposition to holding May elections was clear. Most of these negotiations have focused on postponing the elections.
The Senate could reject the proposed law implementing postal voting and the Sejm might not be able to overrule the Senate’s decision if it fails to get the required majority. In this scenario, the opposition with the support of several members of Gowin’s party could then appoint him as Marshal, or Speaker, of the Sejm. This scenario would mean the collapse of the ruling coalition.
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