The presidential election originally scheduled for 10 May in Poland is the climax point in a long conflict between the PiS government and the institutional order of the country.

The COVID-19 pandemic enabled the party of Jarosław Kaczyński to attempt for a final power grab that has been in the making for the last five years.

The party of legal disruption

At first sight, it looks like a defensive strategy. In the semi-presidential system, Andrzej Duda holds an office with powers to veto nearly any law submitted to him by the parliament and the government does not have 60 per cent of seats needed to bypass such obstruction.

Otherwise, the president of Poland is largely a ceremonial post although it is the only politician appointed directly by the citizens.

Many believe that if a PiS candidate is replaced by someone else, it would shorten the life expectancy of the government by incapacitating otherwise unlimited rule of Jarosław Kaczyński. He is the chairman behind the official cabinet pulling all the strings in the country.

Others point out at a unique chance to save the democratic political culture by electing anyone but PiS who would restore the balance of powers and enforce much-needed compromise.

So far Kaczyński’s formula was never to step back in advancing his political rule that was in his own words “to defeat the legal impossibilism”. This is the idea that the legal order excessively constrains the government’s room for manoeuvre.

Where everything is possible, truth is no more

Unlike in Hungary, the attack on the rule of law in Poland was never concealed by meticulous planning. The government juggled with the principal laws of the country exactly where it saw that disruption would fit Kaczyński’s main goal – the concentration of power.

By undermining institutional order it managed to incapacitate the Constitutional Tribunal, one of the main democratic checks, that effectively lost its bi-partisan and international authority.

By introducing a new system of court governance, which now is much subdued to the rule of the prosecutor general – impersonated by the minister of justice – the government desired to place political power above the law.

Over the last years, the government fought to put the Supreme Court, the last bastion to uphold a democratic balance of powers, under partisan influence but this was strongly opposed by the European Commission and the Supreme Court itself.

Finally, PiS had calmed down its illiberal offensive similarly to a predator lurking before its deadly attack, in the eve of the presidential race. It tried to seduce centre leaning voters that would secure another five years term in the office of Andrzej Duda.

These tactics had a mediocre success rate with several polls indicating that while the incumbent would win the first round with any of the main contenders, his chances in the second round would immediately equalise with anyone who makes it to this round: Małgorzata Kidawa-Błońska, Włodzimierz Kosiniak-Kamysz or Szymon Hołownia.

The PiS presidential campaign was initially troubled by several scandals and internal conflicts within the ruling camp that ate up much of the premium enjoyed usually by the incumbent. Then came COVID-19.

Rally behind the flag

The 10 May date set for the Polish presidential election was scheduled at nearly the last possible moment but still ahead of the pandemic. The constitution requires the election to take place between 100 and 75 days before the term expires on 6 August 2020. Few in Europe, if any, expected the coming blow.

Then, in mid-March, the government introduced a state of the epidemic to save lives with provisions limiting civil liberties and extending its own powers but effectively flattening the curve. At that point, two months ahead of the vote, all candidates but one suspended their campaign trips and advised voters to stay at home

Only Andrzej Duda initially ignored his own government’s provisions, still travelling around the country and shaking hands with people potentially exposed to the virus. At this point, outraged contenders demanded that the election is not held because of safety reasons, or an unfair process.

Opinion polls indicated that nearly 80 per cent oppose the vote to take place as scheduled. Subsequently, the OSCE issued a warning against abusing the crisis for electoral gain in wake of PiS initiative to change the electoral law. While forbidden by the Constitutional Tribunal, the government made changes to the electoral law in two instances.

First, under the disguise of a pandemic relief package, it incapacitated the National Electoral Commission.

Secondly, it pushed through a new electoral law which is processed with maximum possible delay by the Senate – where the opposition holds a thin majority – but is sure to be enacted and signed into law in the last week before the election (!).

The new voting procedure would be carried out by the official postal office and administered solely by Jacek Sasin, one of the closest associates of Jarosław Kaczyński, who was appointed recently to the government in a strongman role of treasurer controlling all state assets.

At this point, electoral contenders flagged, besides obvious health hazards, procedural hurdles which make a fair election impossible to be carried out also from the logistical point of view. In the light of the grand strategy of Jarosław Kaczyński actually has devised it as a honey trap for the opposition. By carrying out his seemingly impossible orders the government would kill two birds with one stone:

• Prove that it is once again his determination to fight “the legal impossibilism” and establish new rules of the game by sheer political will.
• Rally behind the flag not only the voters who seek the protection of the government in times of crisis but also within his own ranks, where potential mutineers began to rock the boat.

A simple solution

There is no doubt that the presidential election in May should be postponed and the constitution provides a simple solution that could delay the vote. Among three states of exception, there is the martial law, the state of emergency and the state of a natural disaster. Introduction of the third one would postpone the election at least until the fall and it can be invoked solely by the simple majority government.

Also, if an election does not take place by summer for any other reason, then on 6 August, the office of the president would be vacated. The speaker of the Sejm would become acting president who would have up to 14 days to announce a new vote within 60 days. In such a case, the election would need to take place by mid-October unless the government introduces the state of a natural disaster earlier which postpones the election by a minimum 90 days afterwards automatically extending the term.

This would be a logical step which is in line with many voices, even within PiS, that the election should be postponed until next year or longer. Jarosław Kaczyński is also one of the signatories of a new law proposal to keep the incumbent in office for two additional years without the right to be re-elected – an amendment to the constitution.

But instead, he pushes for organising a contested vote in May. This indicates that just like in the case of Hungary where Viktor Orbán proclaimed his rule by decree and suspended the parliament without a sunset clause, the political processes that we see are not COVID19-related.

The autocratic minds within parliamentary democracies are trying, as they always did, to capture power using COVID as a pretext.

Resulting scenarios

It looks like the PiS is playing a game of chicken in which the first to divert from the collision course loses while the last one standing claims total victory. If game theory could describe different political regimes then this game would be one of the furthest away from a democratic political culture.

The uncertainty of the current situation without comparative opinion polling leaves a couple of scenarios open. In this highly polarised political game, none of the parties seem to have the upper hand in a conflict that is larger than just the presidential election. These are potential end results of several futures related to the current race.

The first set of scenarios assumes that voting in May to be held by mail and organised despite obvious unfair practice.

In one, incumbent Andrzej Duda is declared a winner in the first round by the government which immediately triggers a strong response by the opposition and civil society – submitting their cases to the Supreme Court. It remains up to the court to validate the result and while it has not nullified the vote yet there is a lot of ground to do that this time. While even the independent court might not necessarily agree with this, there is an additional hiccup.

PiS has installed a special chamber of control within the Supreme Court which was supposed to take over the validation of election but the status of the appointed justices there is questionable while both the Supreme Court, the European Commission and the European Court of Justice need to sort out the legal mess created by PiS legislation.

Yet, PiS may ignore this and expect the vote to be validated. Or in case the special chamber would invalidate Duda’s victory, therefore, it would achieve another strategic victory of legitimising this hard-fought institution.

Remember that Kaczyński’s desire to concentrate power starts within his own milieu as he always wants to divide and rule at least within his own camp.

Another scenario assumes that Duda does not make it in the first round and is preparing for a second round. Several projections already indicated that Kosiniak-Kamysz or Hołownia would see a serious chance of victory then. Such a prognostic might incentivise PiS to introduce a state of natural disaster – as within two weeks after the vote the number of new COVID-19 cases would start to grow again – thus postponing the vote.

After the second turn, a civic petition filed to the Supreme Court (or its special chamber) could also invalidate the result.

In a number of other scenarios, the vote does not take place on 10 May – due to logistical failure, international pressure, or dissent within the ruling majority – and the election is rescheduled, possibly until October.

The chances of an Andrzej Duda victory would likely become thinner with every delay due to mere voters dissatisfaction with the economic results and a wide feeling of relative deprivation. That would mean that PiS is in retreat and has to take the burden of popular dissatisfaction coming with post-COVID-19 economic conditions.

The final scenario, in which no vote takes place until the presidential office is emptied, assumes that the speaker takes up the place and orders an election but subsequent states of emergency delay the actual vote. Although this seems unlikely, Poland could plausibly enter uncharted territory in constitutional terms, i.e. a situation which ultimately benefits only the informal leader of Poland.

The time is now

Amidst the pandemic, the EU and NATO countries must recognise the dangers related to this situation. Poland’s strategic position to the EU’s future and to NATO countries security requires institutional stability that comes only with democracy, not with constant institutional disruption.

The EU must demonstrate a willingness to process open cases on infringement while providing means of relief and recovery. The EJC decision suspending the questionable special chamber of the Supreme Court has to be enforced in order to prevent legal and political chaos.

The NATO alliance, while built on democratic principles, needs to recognise the potential of abusing the situation by Russia, which as of January has been carrying out unprecedented military exercises that were never seen in its modern history.

But first and foremost, the opposition has to run its full potential of campaigning under the current conditions in order to mobilise the voters to submit their preferences, despite a legal questioning of the vote.

Just like in 1989 when the elections were unfair but free, the government had to recognise that it lost even though it formally kept control.

This article is part of the #DemocraCE project. An abridged version was first published on EUObserver.

Illustration by Daniel Garcia.