EuroMed Rights talked to Anna Adamska – Gallant, a former judge from Poland and international expert on the judiciary, who listed the issues that might dot the democratic process.
EuroMed Rights: Can you sum up the current situation in the Polish democratic process?
Anna Adamska-Gallant: “10th May 2020 – this was a day when Polish citizens were to vote for a new President to lead the state for the next 5 years. The election’s schedule, determined in the law, had already been announced in February. Nobody in Poland then was thinking about coronavirus, the lockdown and all the chaos that we are living in. What is even worse, nobody expected that Poland would face the biggest political and constitutional crisis ever for the last 30 years of its independence.
In the evening of 10th May, instead of watching the exit polls results which is a tradition after election commissions are closed, Polish citizens were listening to the Central Election Commission’s statement. According to the Commission it was “impossible to vote this day for candidates”, and in 14 days the Marshal of the Sejm (lower Chamber of the Parliament) shall announce a new presidential election.”
“It is true that it was impossible to vote. Despite obligations resulting from the Election Code, the State did not enable its citizens to participate in one of the most important democratic acts: the presidential election. Poles have been deprived of this possibility exclusively because of interest of the governing party (Prawo i Sprawiedliwość – Law and Justice) and its determination to re-elect its president Andrzej Duda for the second term.”
Why such expediency to hold the vote from leaders of the PiS party?
“The governing party is pushing to hold the election as soon as possible, even in the peak of the epidemy, because they believe that this is the last moment for them to win. With time passing, there is a serious risk that the economic crisis will deepen, and as a result its candidate for the President will lose the election. Therefore, despite the impossibility to change the Election Code less than 6 months before an election, in April this year a draft law providing the election to be conducted exclusively by postal vote and to be organised by the government without involvement of independent election commissions was passed by the Sejm (lower house), which is dominated by the governing party.”
Does the Polish constitution not allow for emergency situations?
“The Polish Constitution details clearly how to proceed in a state of natural disaster. The coronavirus pandemic falls under this category. If such a state is declared, the tenure of a president can be extended for an additional period, and the presidential election could not be conducted earlier than 90 days after the emergency is finished. Unfortunately, to avoid this consequence the government is refusing to recognise this as a natural disaster. At the same time they are imposing all possible restrictions on the citizens without proper legal grounds. It is not the first time the Constitution is not respected by people who are holding power in Poland.
Until late night 6th May, we still did not know whether the presidential election would take place on Sunday, 10th. Neither did we know in which way the election was to be conducted because the previous law regulating this matter was annulled and a new draft law was still pending in the Parliament. Only on 5th May, the Senate (the higher house of the Parliament) rejected the draft law on election and sent it back to the Sejm. It was still not clear if the governing party would have enough votes to adopt it because a smaller coalition party did not want to vote for it.
Late at night on 6th May, it was announced that leaders of these two parties had come to an agreement. According to it, both parties were to support the draft law which only allowed postal voting. Additionally, they agreed that the presidential election would not take place on 10th May. According to them, this should justify declaring the election as null and void by the Supreme Court, which, in turn, would allow the Marshal of the Sejm to announce the new presidential election. In a way, party leaders were effectively telling the Supreme Court how it should decide. It must be underlined that Supreme Court judges publicly opposed such interference in their independence.”
What impacts did this decision have?
“This informal agreement was reached between the leaders of the two parties, without any involvement from the Parliament nor from the opposition. It does not have any legal grounds, but it has already had serious impact on the situation.
First of all, the law on presidential election was finally adopted on 8th May and entered into force immediately on 9th May after it was signed by the current President, who is also running in the election. Secondly, the election scheduled for 10th May was declared by the parties’ leaders to be postponed. However, the election was not annulled or cancelled in a way that is prescribed in the law.
As the election of May 10th did not take place, the State should start planning the next one. However, the current law provides exclusively for postal voting and there are still serious concerns that the constitutional standards provided for the election in a democratic, rule-of-law state will not be met.”
What are the main risks the current situation poses?
“First of all, there is a risk that the election will not be free. Given that, according to the law voting will be performed outside election commissions, there are no guarantees that each citizen will give a vote freely, with no pressure from outside.
Secondly, there is a risk that the election will not be equal because candidates do not have the same possibilities to conduct their campaign. Due to the state of epidemic, their campaigns were suspended and it is not clear how they would act during the new campaign. On the other hand the current President is using his position to conduct an overwhelming campaign. All state institutions are working for him, public TV is only presenting propaganda material to ensure his victory. As a consequence, the citizens do not have equal access to information about all the candidates.
Thirdly, there is a risk that the election will not be common, because according to the law a significant part of Polish citizens will in fact be deprived of a right to vote. It is sufficient to say that all Poles living abroad, who are allowed to participate in the election, will not be able to do it. It results not only from the fact that the postal vote will not be conducted abroad, but also from restrictions on movement imposed due to coronavirus in countries where they live.
Fourthly, there is a risk that the election will not be secret. Each citizen shall put his/her vote in one envelope, close and stick it, and then put in a second envelope together with a signed document with personal data, including personal number.
Finally, there is a risk that the election will not be direct. According to the draft law, votes should be placed in ballot boxes, but it does not need to be done in person, as it can be also delivered through an intermediary.”
Are there any risks related to postal voting?
“Postal voting also poses serious threats of abuse and falsification. Voting cards for this round of the election were printed by a private company and they have already been leaked. These cards are easy to produce using an ordinary printer, especially as they are not labeled with an official stamp of the Election Commission which has been almost entirely excluded from the preparation of the election. To give you the full picture, the Minister of State Assets – instead of the independent Central Election Commission takes control for all election arrangements. Voting cards are to be delivered by postmen not as a registered post but only as commercial leaflets.”
So when might the next election take place?
“Talking about the date of the presidential election in Poland is pure speculation as the situation is very unstable. The same applies to the procedure under which it will be conducted. The only thing that is clear is the fact that the tenure of the current President ends in August. If this crisis is not resolved in accordance to the Constitution, its consequences can be extremely serious. I still hope that Poland will manage to do it.”
Since the publication of this article, the Polish Commissioner for Human Rights sent a letter requesting an urgent official opinion to the Director of the Office for Democratic Institutions and Human Rights at the OSCE.