It is impossible to predict today if Kaczyński will get his way and some sort of election will take place in the coming weeks, which would undoubtedly re-install Duda as a party-compliant president for another five years.

The Polish government wants to hold a presidential election on 10 May 2020 whilst the nation is in lockdown. Alternatively, the government of Poland wants to delay the election by two years expending the current president’s term to seven years.

Both proposals require a thorough change of the electoral law without the consent of the opposition and in blatant violation of Poland’s constitution and international standards as determined by the OSCE and the EU.

There is no doubt that if any of the two proposals are implemented, Poland’s already weak position in the EU will dramatically deteriorate. Nonetheless, the government appears determined to solidify its grip on power before the public mood sours following the incoming economic slowdown and recession.

COVID-19 and election manipulation

According to the Polish Constitution, a presidential election should be held between 75 and 100 days before the expiry of the term of the sitting president. The term of the current President – backed by the ruling Law and Justice (PiS) party – expires on 6 August 2020.

Following constitutional prerogatives, Andrzej Duda named 10 May 2020 as the date for the new election and declared his intention to run for another five-year term.  Up until then, the whole process proceeded according to the constitutional rules of the game.

But when the COVID-19 epidemic broke out, it became progressively clear that holding the election in May would be hazardous to public health. Opposition candidates suspended their campaigns and called for the delay of the vote.

However, the leader of Law and Justice, Jarosław Kaczyński, stubbornly insisted that no delay was needed and that the election must go ahead on 10 May. Kaczyński has also refused a declaration by the parliament for the state of national emergency, which would have automatically meant a postponement of the election by up to three months – as stipulated by the constitution.

As the nation was instructed to observe strict social-distancing provisions, Kaczyński himself remained laissez-faire about them, to say the least. On 10 April, he led a large group of officials to celebrate the tenth anniversary of the plane crash in Smoleńsk (in which his brother and former President died).

The group kept no distance and none of the participants was wearing a protective mask. Defying the regulation prohibiting entry into cemeteries, Kaczyński was photographed whilst entering the necropolis where his relatives were buried again surrounded by a large group of men.

However, as the government was tightening its social-distancing regulations and the number of infections has been rising, the date for holding the elections on 10 May has been questioned even inside Kaczyński’s own party. Still Kaczyński remained unwavering.

Instead, he pushed for the change of the electoral law allowing for the correspondence voting and a total overhaul of the election rules. According to the new regulation, a non-partisan judicial electoral committee is removed from all the responsibility for organising the poll and counting votes.

Now, this responsibility falls on the Post Office, which is a state-owned company headed by PiS’s staunched loyalist and until recently a deputy minister of defence. A number of other strategic positions in the Post Office have been staffed now with former employees of the Ministry of Defence.

The whole process of postal voting as defined in the new law pushed through by PiS is clearly in violation of the constitution and a number of international standards as recognised by the EU and OSCE. Here are four reasons why:

  • Changing the rules during the game: The electoral law was changed in a radical manner in close time proximity to the date of the election (one month) with no consent or a consultation with the opposition. The ruling of Poland’s Constitutional Court from 2006 states clearly that election rules cannot be changed in the period shorter than six months before the actual vote.
  • No judicial review: The process is lacking now any element of judicial impartial review with the electoral commission being stripped from any meaningful responsibility.
  • Data privacy violation: In order to dispatch the election cards to the voters the post-office must obtain their personal data without securing the permission of concerned voters. This is in blatant violation of the EU and Poland’s data privacy law.
  • No campaigning: as pointed out by OSCE, the election cannot be considered fair whilst the campaigns are suspended and the opposition has far more limited access to state-owned media than the sitting president.

It is quite conceivable that PiS will actually run out of time and the Post Office will proof ill-suited in managing a national election for the 38 million nation.

So, the other option that PiS has tabled in the parliament is to extend the current president’s term by two years until the spring of 2022.

Both options are unconstitutional and objected by the opposition who maintains that the existing constitution contains the simple mechanism allowing for the postponing of an election in the state of national emergencies.

Why PiS manipulates the election?

Andrzej Duda

PiS and President Andrzej Duda remain popular in Poland. PiS won the parliamentary elections and was re-elected for a second term in October 2019. President Duda is by far the most popular of the candidates registered for the presidential election.

It is therefore quite possible that Duda would have been re-elected in a free and fair contest without any manipulation with the current constitution. However, the timing is of the essence for PiS and Jarosław Kaczyński.

Whilst the party’s dominance today is still unthreatened it seems clear to the party’s establishment that the current level of support will be dwindling in the coming days as the recession will hit the Polish economy and the standards of living will begin to deteriorate.

PiS has built its current levels of support on a mix of social conservatism combined with economic socialism. The last four years in Poland have been marked by a growing number of social programmes and direct payments to large sectors of society.

The programmes included the child support scheme – paid for every child paid until the age of 18, an additional 13th pension for all pensioners, the increase of minimum wage and zero income tax for salaried employees until the age of 26.

These programmes have cost the budget tens of billions zloty but as long as the economy was growing and propped up by increased consumption and EU funds, the government could afford this spending spree.

In the meantime the support base for PiS was expanding. As Poland will inevitably enter into a recession in the coming months, the government will have to halt and revise some of its social programmes, which may substantially reduce the levels of support for the party. This would represent a threat of Kaczyński’s project of a changing Poland’s political system.

Jarosław Kaczyński’s has always wanted more than to win elections and lead the government, which he gladly left to his hand-picked surrogates. Kaczyński’s ambitions are going much further as he intends to revise the constitutional order established after the fall of communism and leave his legacy as a founder of the next (fourth) republic.

Since 1990, Kaczyński has argued that Poland’s transition to democracy has been flawed as it was achieved through a compromise and not a revolution.  This, according to him, meant that the communist system was replaced with the liberal-democratic order based on the balance of powers. His preference has always been for a state in which the powers of the executive are not constrained by other branches and the government has a defining influence on all aspects of socio-economic life, such as business, culture and education.

In particular, Kaczyński has sought to change the following systemic aspects of the post-1989 system:

  • Judiciary: its independence should end and the branch should become politically answerable. It is inconceivable for Kaczyński that the judicially could have a power to question and even block the decisions of the executive
  • Business: needs to work to support the objectives of the government. It should be also “polonised”, meaning that it should predominately have Polish ownership.
  • Media: should not engage in the criticism of the government and if they do their market position should be reduced and eventually they should be driven out of the market.  Media should also be “polonised”.
  • Education: the sector should engage in shaping future patriotic citizens dedicated to the state-centric vision as promoted by Kaczyński.
  • Local government: should ideally become an extension of the central government.

PiS won the 2015 and 2019 parliamentary elections but it has never achieved a constitutional majority. Moreover, following the 2019 elections the opposition has retaken the Senate.

Therefore, the room for implementing the changes desired by Kaczyński is more difficult in Poland than in Hungary and often it happens in a blatant disregard for the current constitution, which pushes government into a costly conflict with the European Union.

Still, PiS is getting close to a total take-over of the judiciary. Meanwhile business has become compliant with the government wishes. In any case, Poland’s biggest companies are still state-owned and their leadership is entirely taken over by the party nominees.

However, after five years in power PiS still has not gained a total control of the media market, most of which remains in private hands.

The education sector also remains resistant with higher education remaining independent.

Local governments remain largely independent from central government. In large and medium-sized cities they are in the hands of the opposition.

It is therefore clear that in order to finish up the job of establishing a new semi-authoritarian republic PiS needs more time. It seems that Kaczyński has decided that this is the last chance to complete his life project. If it requires rigging the election, so be it.

Conclusion and Recommendations

It is impossible to predict today if Kaczyński will get his way and some sort of election will take place in the coming weeks, which would undoubtedly re-install Duda as a party-compliant president for another five years.

There is a small chance that the opposition will unite and with support of the moderate faction of the parliamentary majority (led by the former deputy Prime Minister Jarosław Gowin) it will block the election in the form pushed through by Kaczyński.

In any case, there is no doubt that Kaczyński will not cease in implementing his project and transform Poland into a semi-authoritarian state. In order to resist this, the following measures should be considered.

  • The legitimacy of a pseudo-election should be openly questioned by international actors. The OSCE has already communicated its concern about holding the election whilst no campaigning is possible. Clear signals to this tune from other international actors could encourage the government in Warsaw to pause and seek a compromise solution acceptable to all major political forces in Poland.
  • It is essential that the European Commission and the European Court of Justice continue to resist the demolishment of judicial independence in Poland. Already some judges who resisted government’s pressure have been fined, some may be disbarred soon. It is essential that the harassed judges and prosecutors will be supported and retain their ability to speak up.
  • The Polish media market must retain its diversity and ability to reference and when needed to criticise the government. The government’s attempts to limit foreign ownership share in the Polish media market should be resisted. Support scheme for independent journalists who lost their work because of their principled stances should be considered. Independent publishers, sometimes funded exclusively through crowd-funding, should be supported.

 

 

This article is part of the #DemocraCE project.

#DemocraCE Fellow and Senior Associate at Visegrad Insight


Eastern European Futures

In 2009, the European Union and six of its Eastern neighbours launched the Eastern Partnership (EaP) with the stated aim of building a common area of shared democracy, prosperity, stability and increased cooperation. A decade on, however, progress has been mixed.

Visegrad Insight is published by the Res Publica Foundation. This special edition has been prepared in cooperation with the German Marshall Fund of the United States and supported by the International Visegrad Fund.

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