Situation around Presidential election unconstitutional?

Statement by the Political Accountability Foundation on amendments to the election law as of May 24, 2020

The Political Accountability Foundation (PAF) would like to express its concern regarding specific provisions included in the Act of May 12, 2020 on special rules for conducting the election of the President of the Republic of Poland ordered in 2020 with the possibility of postal voting (referred to as the “Hybrid Act”).

One of the Foundation’s duties, within the scope of citizen observation, is to assess the impact of proposed amendments on the electoral process, as well as the method of their introduction. Below, we would like to present the current situation around the presidential election and analyse selected provisions of the Hybrid Act, which in our opinion may cause problems in organising the election.

Assessment of events as of May 12, 2020 when the “Hybrid Act” has been adopted by the Sejm

The voting in the presidential election scheduled for May 10, 2020 did not take place as the institutional bodies administering the process, in accordance to the Act adopted on May 8, 2020, failed to duly prepare and organise the election.^[1] The lack of preparation was observed in the following fields, i.a. no ballots, no appropriate election commissions responsible for the reception and counting votes. Therefore, risking non-compliance with the provisions of Article 128, section 2 of the Constitution which stipulates that the presidential election shall be held on a day off, no sooner than 75 days and no later than 100 days before the expiry of the term of office of the serving President.^[2]

On May 10, the National Electoral Commission (NEC) adopted a resolution stating that there was no possibility to vote for candidates in the election of the President of the Republic of Poland.^[3] The resolution entered into force as of the date of its promulgation and was presented by the head of NEC as terminating the electoral process in the presidential election scheduled for May 10.

The NEC concluded that the lack of preparation for the May 10 election lead to the lack of possibility for voters to cast votes which has the same implications as the situation described in Article 293 § 3 of the Election Code - no candidates are standing in the election. Such an interpretation allows to apply Article 293, section 2 of the Election Code which stipulates that in the absence of candidates or if only one candidate is running in the presidential election, the Speaker of the Sejm (lower house of parliament) shall order a new election not later than 14 days from the date of publishing of NEC’s resolution in the Gazette [Dziennik Ustaw].

On May 11 the Supreme Court issued a communication regarding electoral protests indicating that it would examine such protests only after NEC discloses the election result to the public, and that NEC’s resolution of May 10 (mentioned above) “is not equivalent to a resolution on the basis of which the voting results are disclosed to the public”.^[4]

The course of recent events resulted in the failure to meet the election dates set in the Constitution,^[5]  thus creating legal uncertainty with regards to the possibility to conduct the election in accordance with the requirements of the Constitution and the Election Code, e.g. within the time limits for candidate registration, collecting signatures, creating precinct election commissions or for conducting an informational campaign for voters. The solution applied by the NEC with the resolution of May 10 allows the Speaker of Sejm to order a new election within regulations provided by Election Code, i.e. Article 293, section 2. However, the date to schedule a new election is to be calculated once NEC’s resolution is published in the Gazette, which has not yet been done.

The adopted interpretation does not resolve the issue of the unfinished Presidential election scheduled for May 10, 2020. Voters were deprived of their rights - could neither cast a vote nor lodge an electoral protest, and the election results could not have been published within the time limit recognized by the Constitution. Thus, it may be also presumed that a failure to comply with constitutional time limits does not result in breaching the law. Holding this interpretation may pose  a serious threat to the legitimacy of future elections and, most importantly, it may allow the executive to influence the date of future elections without taking into account the provisions of the Constitution, as well as legislative and judicial decisions.^[6]

The “Hybrid Act”

One day after the presidential election scheduled for May 10, 2020, an election where voters did not have the opportunity to cast their votes in part due to legal chaos, a new draft act has been introduced to the Sejm. The so-called “Hybrid Act” (Act on special rules on conducting the Election of President of the Republic of Poland ordered in 2020, including the possibility of postal voting)^[7], was further complemented the next day, May 12, with an auto-amendment.^[8] The draft act replaces the Act of April 6, which entered into force on May 9, and annuls the regulation which  provided for voting to be carry out solely by mail. The new Act introduces a mixed/hybrid voting system, combining traditional voting in polling stations with postal voting. It was adopted by Sejm on May 12 and passed on to the Senate.

The “Hybrid Act” introduces a number of changes improving upon the Act of April 6, however it still includes a number of provisions that may have a negative impact on the conduct of the electoral process. Moreover, the Hybrid Act is being considered in the Senate while neither the date nor the way of voting for the President of the Republic of Poland has been set in compliance with the requirements specified by the Constitution^[9] and the Election Code.^[10] This leads to further legal chaos, increases confusion among voters, as well as weakens the trust in the legal system and in the electoral process itself.

First of all, we would however like to underline that, in comparison to the currently applicable Act of April 6,, the Hybrid Act resolves some crucial issues for citizen observation organizations by returning the responsibility to conduct voting back to the precinct election commissions. Therefore, authorized organisations will be allowed to delegate citizen observers to precinct election commissions in accordance with Article 103c of the Election Code.

Conclusion

The current situation we find ourselves in is a situation of a “constitutional vacuum” and is caused by the legal and organisational chaos as well as the decision not to hold voting in the election ordered by the Speaker of the Sejm for May 10 in accordance with Art. 128 section 2 of the Constitution. The Constitution, in contrary to the Election Code, does not foresee the possibility not to hold voting in an election. However, none of the provisions of the Election Code regulates directly the situation we are in now.

The complexity and unpredictability of the aforementioned situation causes constitutional lawyers, political commentators, the authorities and the opposition to discuss a number of potential solutions:

• the introduction of extraordinary measures as stipulated by Art. 228 of the Constitution - a state of natural disaster is the most common suggestion - elections cannot be held during a period when extraordinary measures are in place, as well as within 90 days following their termination;
• holding a new election basing on the interpretation proposed by the NEC in its decision dated May 10 - the date currently proposed for such an election is June 28;
• ordering a new election only after the current President’s term comes to an end on August 6 - treating this situation as synonymous to the vacation of office, outlined in Art 128 section 2 of the Constitution and Art 289 section 2 of the Election Code.

Even though there are multiple proposals how to escape this stalemate, it seems that these might not be a genuine attempt to resolve this constitutional crisis and to bring Polish law closer to international standards, but rather to adapt the legal framework to the temporary needs of the leading political parties in order to help them achieve interim political objectives.

For a more detailed analysis of PAF's concerns regarding provisions in the 'Hybrid Act' see the full statement below