by Pawel Laidler
In our ongoing series exploring the impact of the COVID-19 crisis in the CSEE region, Pawel Laidler analyses how the Polish government’s response to the crisis is complicated by its upcoming presidential elections.
Polish electoral games in times of pandemic
There is no doubt that the outbreak of the COVID-19 pandemic has affected the lives of societies, the state of economies, and the activities of governments expected to respond effectively to the global threat. Comparisons with world wars, the AIDS epidemic, or post-9/11 reality, although problematic, may be right with respect to the restrictions on the rights and freedoms of individuals imposed in these times of emergency, but the scale of the spread of the virus, its unpredictability, and the need to impose immediate security measures by governments seems incomparable to anything living generations have experienced.
Poland was one of the first European states to close its borders and introduce laws isolating citizens and closing down schools, public recreation spaces and most businesses and shops, thereby trying to prevent a rapid growth of infections. From the beginning of March until mid-April several restrictions on civil rights were imposed including freedom of movement, of assembly, and the right to privacy. As a result of these restrictions, Poles could leave their homes only for essential life matters, children could not leave home unattended, and public gatherings were forbidden. Furthermore, since 16th April everyone has had to cover their mouth and nose while outside. All of these measures were introduced on the basis of a state of epidemic, instead of a state of emergency (or natural disaster), which could be announced in accordance with the Polish Constitution.
The Poles have generally complied with the restrictions, as most of them understand the need to limit individual liberties in the name of strengthening security and the protection of health. It is obvious that the government decided to choose far-reaching preventive measures in dealing with the consequences of COVID-19; however, not all political decisions are consistent with such an approach. The governing populist Law and Justice Party (PiS) decided to push ahead with the presidential election scheduled for 10th May, despite difficulties with its conduct during the intensification of the epidemic, and controversies regarding the probably unconstitutional amendments to electoral laws.
In March, when the first infections occurred and restrictions on individual freedoms were imposed, the presidential campaign was suspended for most candidates, except for the acting President, Andrzej Duda, supported by PiS. Opposition candidates have had limited possibilities to conduct electoral campaigns. In contrast, the President has been able to use the resulting momentum to build his position as the head of state in times of crisis and a leading candidate for re-election. Despite the fact that Duda has to share his leadership role with PM Mateusz Morawiecki and the Minister of Health, Łukasz Szumowski, the President enjoys a high level of popularity as a consequence of the pandemic emergency and the limited political activity of other candidates.
The government, following criticism for not postponing the election, decided to introduce modifications to Polish electoral law, such as postal voting for selected social groups. The first piece of coronavirus legislation which modified the Electoral Code proposed postal voting for citizens over 60 and people who were quarantined for health reasons. This aroused criticism from legal experts and NGOs that conducting elections in the usual manner would be dangerous for voters’ health. These provisions could also limit the access of Poles living abroad to polling stations due to movement limitations in many countries.
A few days later, PiS introduced new legislation aimed at expanding postal voting to the whole electorate, but these measures became part of the so-called “Anti-Crisis Shield” Bill – the government’s response to the negative economic consequences of the national quarantine caused by the virus. The bill was approved by the governing majority in the Sejm (lower house of parliament) without a broader debate, despite the fact that back in 2013 PiS criticised postal voting as dangerous for democracy, and in 2018 the party limited that form of voting to people with disabilities. After being supported by the governing coalition the bill was passed to the Senate, which is narrowly ruled (51-49) by the opposition parties. The Senate has 30 days to support or reject the bill, and has to weigh the necessity of postponing the vote for the implementation of new electoral measures against the need to pass the economic rescue package for which a large part of society is waiting. In these tense days of quarantine, Poles concerned about the health and lives of their relatives are watching a political game in the middle of a pandemic.
Of course, postal ballots occur in democracies around the world and should not be considered an infringement on the rights of the voters (that method of voting was recently used in South Korean elections). The problem of the legislation, however, lies in its form and the time required for its implementation. Firstly, there are serious concerns about whether the Electoral Code may be modified in such a short period before the election. According to rulings of the Polish Constitutional Tribunal (from 2006 and 2011), any significant changes to the election rules should be made up to six months before election day. The fact that these important modifications have become a part of a major piece of coronavirus anti-crisis legislation and were approved without the necessary discussion seems to undermine the significance of elections as the heart of democratic process.
Secondly, it is highly unlikely that the government will be able to prepare the ballots, as the bill (with the Senate’s amendments) may be sent back to Sejm just a few days before election day. Therefore, the government may try to move the date of the election to the 17th or 23rd of May, using the powers granted in the coronavirus legislation allowing the Sejm’s Marshall to set the election date within the constitutionally admissible period. Even then, it may still be impossible to prepare the ballots on time and distribute them among the electorate. On the other hand, if the bill is rejected by the Sejm (which is highly unlikely), the elections would have to be conducted in the original form, which, considering the amount of time that would leave for the organisation of electoral commissions, is impossible. All in all, there are serious doubts about whether the election can be organised properly, and the proposed method of voting has aroused distrust among citizens, the majority of whom fear that the rule of secrecy of elections would not be properly protected.
Playing electoral games in the middle of the COVID-19 drama seems risky not only for the government, but generally for the rule of law and democracy. The essence of democracy is to give the people the best tools and provide the circumstances in which they can make decisions about their future and the future of democracy itself. The current situation, from both the medical and political perspectives, is imperfect and holding presidential elections in May threatens a low turnout and post-election allegations of an unfair and unjust vote, not to mention the undemocratic character of the pending campaign. Some of the members of the governing coalition realise this, hence the ideas of amending the Constitution and prolonging the president’s tenure from five to seven years. These initiatives are unlikely to be implemented, as such a modification of the highest law should be made only after deliberation and with due consideration.
The paradox is that PiS defends the May election by referring to the Constitution, which does not allow the postponement of the date of an election. However, announcing the state of emergency prescribed in Article 228 constitutes a legal basis for such a postponement. As a matter of fact, some elements of a state of emergency have already been imposed, so the argument that there is no need to introduce further restrictions on Polish citizens seems exaggerated. I assume that most Poles would agree to the limitations of rights and freedoms during the coronavirus threat in order to enjoy an unlimited right to vote in calmer times. That is a kind of game worth playing, instead of political maneuvers which threaten the integrity of very electoral process.
Professor Pawel Laidler is a political scientist and lawyer at the Institute of American Studies and Polish Diaspora, Faculty of International and Political Relations, Jagiellonian University in Krakow, Poland. His areas of expertise include the American political and legal system, U.S. and comparative constitutionalism, international law, the issue of judicialisation of politics, as well as the politics of surveillance in the post-Snowden era. He conducted research and teaching in the United States, Canada, Australia, as well as several EU states. He was a visiting professor at JFK Institute for North America Studies at Freie University in Berlin. Currently he is a co-investigator in an international project on “Trust and Transparency in an Age of Surveillance. American, German and Polish Perspectives” funded by Polish and German National Science Centers.