Not only in Hungary but also in Poland, the COVID-19 pandemic is a test for democracy. Just one month before the presidential election, the Polish governing party Law and Justice pushed for a change in the electoral code that would impose postal voting.

Two events have stirred controversy in Poland in recent weeks.

First, the country’s ruling party Law and Justice (PiS) forced through legislation that would oblige 30 million Poles to vote by post in next month’s presidential election. Second, it announced it would refuse to comply with a ruling of the European Court of Justice.

Both the changes to the electoral code and the idea of universal postal voting are problematic. The government wants to prevent a delay at all costs so that the election does not take place in the midst of an economic recession caused by COVID-19.

Bring your voting card

Polish Prime Minister Mateusz Morawiecki

In 2006, the Constitutional Tribunal ruled against such changes within a six-month time span. Just a couple of years ago, PiS restricted the right to vote by post – citing the need to reduce electoral fraud. Now, the party wants to oblige the Polish electorate to choose the country’s next president by voting with a card that will arrive by post.

Voters still need to bring their voting cards to special boxes located at voting municipalities. The new legislation criminalises the refusal to collect the voting card – offenders may even face a prison sentence up to three years.

Postal workers and opposition politicians have ridiculed the idea of postal voting at a time of a de-facto state emergency and the ongoing COVID-19 pandemic. Nonetheless, shortly after the decision, a deputy defence minister was appointed as the new head of the state postal service, to speed up preparations for the vote.

Regular postal services would be interrupted while voting cards are delivered to about 30 million eligible voters. Without surprise, there is no comparable example of postal voting at this scale elsewhere in the world.

Not without hiccups

The legislation did not pass without any hiccups. Beforehand, Deputy Prime Minister Jaroslaw Gowin (leader of Porozumienie and a member of the governing coalition) had announced his opposition to the idea of universal postal voting. Instead, recommended to extend the current term of President Andrzej Duda to 2022 and change the election to a single, seven-year long term.

PiS suffered an initial defeat because Gowin and other members of Porozumienie withheld their vote, while some PiS members had been unable to vote with the new electronic voting system. Later on the same day, the ruling party secured the vote with only a small majority.

Gowin resigned from his position as deputy prime minister and is rumoured to be working on a plan to bring the government down and install an interim administration (supported by the opposition).

With the legislation voted in the Sejm (lower house), the opposition-controlled Senate still has the possibility to slow down, but not block the changes to the electoral code. With a possible delay up to 30 days, it remains unclear how an election could take place either on 10 or 17 May – a small time-gap that is fixed in the Polish constitution.

Nevertheless, the current government seems desperate to secure the re-election of Andrzej Duda and thereby the possibility to continue its radical remaking of the Polish state.

Meanwhile, opposition candidates to the presidential election have neither opportunity nor capacity to campaign through the country, because of the lockdown measures. Duda, as the incumbent, faces no such restrictions.

Any significant delay of the presidential election would mean that a vote takes place in a possible economic recession when the impact of the COVID-19 crisis is fully visible. PiS wishes to avoid such a scenario at all cost.

Matter of competence

The government’s excessive zeal was also on display in response to a ruling by the European Court of Justice (ECJ) on a disciplinary body of the Polish judicial system.

While the European court’s decision to question the independence of the disciplinary body, part of the Polish Supreme Court, was an expected move, it was quickly met by criticism within government circles.

In a number of rulings in the last months, the ECJ has underlined the threat to the independence of Polish judges. The court is expected to continue to rule against the judicial reforms undertaken by the current government in the second half of this year.

Last week, the ECJ also ruled that all proceedings of the disciplinary body must be immediately suspended, with the risk of fines in case of non-compliance.

Soon after, a state secretary of the Ministry of Justice falsely claimed that the ECJ has no competence to evaluate or suspend any constitutional organs of EU member states.

In somewhat milder terms, Prime Minister Mateusz Morawiecki stated that the government would refer the matter to the Polish Constitutional Tribunal. This body, however, has also been affected by the PiS-led judiciary reforms and therefore cannot make an impartial judgement in the case.

Among others, government loyalists were added to the tribunal’s benches – a sign of increasing political control over the judicial branch of power.

Although the ECJ ruling and the Polish government’s response are simply part of a new chapter in an ongoing series about the nature and aim of the judicial reforms, the consequences are clear.

One step closer

As long as dubious judicial bodies remain in place, there can be no certainty about Polish judicial independence and its continued participation in the European legal order. A legal ‘Polexit’ has just moved another step closer.

Both recent events, the election of the president by correspondence and the changes in the judiciary, show that the Law and Justice government is not willing to compromise with the opposition parties as well as the European institutions.

It is willing to put both its population and its EU membership at risk, for the sake of leaving a lasting imprint on the Polish state.


This article is part of the #DemocraCE project. It originally appeared in Czech on Hlídací

Dr Quincy R. Cloet is Managing Editor of 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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