There is no doubt that the government will do anything in its power, including dirty tricks, to ensure the sound re-election of Andrzej Duda whose job will be to rubber-stamp whatever Kaczyński will expect of him. A defeat for Duda may begin the process of Poland’s return to constitutional order. However, this is by no means an assured conclusion.

Poland’s National Electoral Commission (Państwowa Komisja Wyborcza), charged with supervising election processes, has declared that the presidential election intended to be held on 10 May was invalid since there was no possibility to vote for any of the registered candidates. The speaker of the Sejm will declare a new date for the election within 14 days after this announcement.

The cancellation is a result of an agreement between two party leaders – Jarosław Kaczyński and Jarosław Gowin – neither of whom holds a government position.

According to recent opinion polls none of the candidates, including incumbent Andrzej Duda, will score over 50 per cent in the first round of the election.

The second round, if it happens, is likely to be marked by mobilisation of opposition. Two centrist candidates Szymon Hołownia and Władysław Kosiniak-Kamysz have been gaining ground in opinion polls.

What has happened?

The term of the sitting President Andrzej Duda – who is supported by the governing Law and Justice party (PiS) – expires on 6 August 2020. Following the letter of the Constitution, the sitting President named the date of 10 May 2020 to hold a new vote in which he seeks re-election.

However, in the meantime, the COVID-19 epidemic broke out leading to the suspension of campaigning and casting doubt about the safety of voters who were advised to observe strict social distancing provisions. The opposition candidates have therefore called on the government to declare a national emergency, which, according to the Polish Constitution, would have allowed for an adequate postponing of the vote.

The leader of the Law and Justice party Jarosław Kaczyński insisted, nevertheless, that the vote had to be held on the date declared before the outbreak of the pandemic. When it became clear that only a fraction of voters would take the risk and go to the polling stations, Law and Justice hastily changed the electoral law switching physical voting into a postal ballot.

As the date of 10 May was approaching the possibility of holding the election on the day looked, however, extremely unlikely. The Polish Post, which was meant to run the process, was not ready in terms of logistics. The voters’ data were incomplete as some local governments refused to transfer them in fear of data privacy violation.

Some postal ballots were leaked from printers and found their way to public circulation. Under these conditions, the electoral commission declared that this election could not be free and fair.

Although Kaczyński remained deaf to calls for postponing the vote, his party ranks started to break down with the leader of the moderate faction Jarosław Gowin leaving the government and speaking against holding the vote on 10 May.

When it became clear that Law and Justice would lose a crucial vote in the Sejm, which would have allowed for holding a postal ballot on 10 May, Kaczyński struck a deal with Gowin.

The two gentlemen agreed (in the form of a co-signed declaration) that the election on 10 May will be cancelled and the new date for the election will be declared by the speaker of the Sejm.

Falling democratic standards

The curiosity of this statement and its actual consequence is just the latest illustration of how deep the democratic standards have sunk in Poland. As the leaders reached their agreement, no constitutional institution was involved in the process, including the electoral commission, the president, the Sejm and the Supreme Court – the latter was meant to cancel the election according to the letter of the document.

However, the two politicians could be certain that their agreement, although un-constitutional, would prove effective because of the complete take-over of the Supreme Court by the Law and Justice nominees since the beginning of May following the expiry of the term of the former President of the Supreme Court Małgorzata Gersdorf.

Still, it is highly unusual for the leaders of political parties to openly state what the Supreme Court would decide. Thereby, they left no doubt about the fact that an independent judiciary no longer exists in Poland.

The presidential election will probably take place now next month, possibly on 28 June. The re-election of the sitting President Andrzej Duda is still a likely outcome since he continues to enjoy a constant and always positive exposure in the state-owned media, which dominate the market, especially in provincial Poland.

However, if Duda does not win in the first round, then the second round – organised two weeks later – is likely to be marked by the mobilisation and unity of the opposition.

The outcome of this election is therefore not a foregone conclusion. According to the recent opinion polls, a second round will be required and the two centrist candidates Szymon Hołownia and Władysław Kosiniak-Kamysz are rising in the opinion polls.

The election may represent another obstacle in Poland’s evolution towards an illiberal regime or begin a trend of reversing Kaczynski’s domination over Polish politics.

In any case, the damage that has been done to the stability of the Polish political system is so extensive that a theoretical triumph of the opposition will not suffice to cure the erosion of democracy in Poland.

As of today, there are possible outcomes following the presidential election in Poland, illiberal consolidation, further polarisation or healing of the situation. Their consequences are elaborated below.

Illiberal consolidation

Andrzej Duda

Andrzej Duda handsomely wins the election in the first round. The opposition candidates score disappointing results and their electorates get demobilised. Following Duda’s resounding victory encouraged Law and Justice accelerates the completion of state capture.

The judiciary loses any remains of independence and judges learn to consult the Ministry of Justice before their reach rulings. The disciplinary chamber of the Supreme Court, already fully controlled by Law and Justice, purges the system from the judges that continue to act independently.

The government moves on to broaden up its capture of the media market. Two privately-owned TV channels – Polsat and TVN – will face a choice of either support the government or to see their business interests damaged.

Polsat, which is owned by Zygmut Solorz – who has multiple business interests, is affected by the government’s regulations – and has already moved to a pro-government position before the elections. With Duda’s victory, that move would be completed. TVN is owned by the American Discovery channel and the US Ambassador to Poland Georgette Mosbacher has fiercely defended its independence.

However, it is expected that the Polish state-owned companies will make a generous offer to Discovery that would then sell its rights to the channel, which would become then government-controlled. Once it happens, the US Embassy’s interest in defending the freedom of speech in Poland would be substantially lowered.

The interest of other foreign-owned media outlets – such as Germany Axel Springer who owns the online platform Onet and many local papers – may be affected with the passage of the law that limits foreign ownership.

Gazeta Wyborcza, which remains Polish-owned, will be harassed by discriminatory government regulations which will be pushing it out of the market.

The education system will be geared towards promoting loyalty to the Law and Justice principles and the party’s version of Poland’s history (messianic and chauvinistic). The universities will be stripped of independence and the teaching programmes in social sciences will be monitored to eliminate any criticism of the governing party.

The political system will remain ostensibly competitive, but the opposition will be deprived of access to media and finances.

Further polarisation

Duda underperforms in the first round of the election. He wins the round but gets less than 50 per cent of the vote, which requires a second round to take place.

In the second round, various opposition forces unite around one candidate who beats Duda. The new president obstructs the work of the government by generously using the veto power.

The economy is in recession, fallowing the epidemic, which leads to the collapse of support for the government and the ascent of the opposition. The Law and Justice party turns towards uglier narratives, in an attempt to rescue its support. Government messaging is becoming openly anti-European and racist.

Leading opposition members are subjected to aggressive smear campaigns and harassed by secret service.

The opposition responds by portraying Law and Justice as a bunch of uncivilised rednecks. Hatred in politics and society grows. With the deepening of the recession, the government may fragment and collapse.

Once the opposition regains power it hits Law and Justice back with vengeance. State-owned companies are purged from the nominees of Law and Justice.

Top positions in the country’s political, economic and judicial areas are replaced with new appointees but the system remains essentially unreformed.

Healing

Andrzej Duda loses in the second round. The new president successfully opposes the dismantlement of checks and balances in the country and acts as a defender of the constitution.

However, the president also works with the government in containing the recession and eventually, the economy returns to the solid growth pattern. The opposition consolidates and successfully captures centrist voters.

Kaczynski’s domination within Law and Justice subsides and the party either moves to the centre or it splinters with the moderate faction eventually joining the opposition. The former hatred is replaced by healthy competition.

Both the opposition and Law and Justice respect the constitution and co-operate when national interest is involved.

Conclusion

 Every nation has conservative and progressive voters. In most democratic countries political parties compete to capture these voters without undermining the realm of the existing constitutional order.

In Poland (and to a more radical extent in Hungary) the conservative elites seek to destroy the existing constitutional order and extend the power of the executive to an unlimited degree in practice. The way the government in Poland has approached the presidential election and is subsequently cancelling it demonstrates that Poland is no longer a functioning democracy.

There is no doubt that the government will do anything in its power, including dirty tricks, to ensure the sound re-election of Andrzej Duda whose job will be to rubber-stamp whatever Kaczyński will expect of him.

If this outcome actually materialises, then the road of PiS to illiberal consolidation will remain unobstructed and the party will complete its state capture. In consequence, Poland’s democracy will become practically just nominal.

A defeat for Duda may begin the process of Poland’s return to constitutional order, however, this by no means is an assured conclusion. At this point in time, the opposition is disunited, and its narrative fails to attract centrist voters.

Whilst much of the society sceptically assesses the ethical standards of Law and Justice and holds no illusion about its power grab tactics, the opposition is seen much through the same light. The perception that dominates is that a change of government accounts to nothing more than a replacement of one power-hungry elite with another.

As of today, the opposition has failed to convince the electorate that its purpose is larger than self-interest.

Poland’s democracy will not be fixed simply by defeating Law and Justice. What is needed first and foremost is a consensus between all main political forces based on the acceptance of the existing constitutional order.

What is also needed is mutual respect and a rejection of hatred in political discourse.

A defeat of Andrzej Duda could stop the process of the erosion of democracy, but it will not suffice in putting Poland on the path to a healthy and predictable political system.

 

 

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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