On 30 June 2022, at the Jagiellonian University Centre for Interdisciplinary Constitutional Studies, a roundtable discussion on “Crises and democracy: the long-term impacts of COVID-19 on V4 countries’ electoral systems” was held on a hybrid format, online participants joined via Webex. It was organised as a Polish Policy Roundtable within the Visegrad research project. The seminar was dedicated to the 2020 presidential elections in Poland and their implications for assessing the integrity of the electoral process and the state of democracy. In the opening remarks, Professor Monika Florczak-Wątor, Head of the Centre for Interdisciplinary Constitutional Studies, welcomed all participants on behalf of the seminar organisers. Then Boldizsár Szentgáli-Tóth, PhD, the principal investigator of the aforementioned project, presented the main idea of the research project and the policy roundtables on Covid and elections.
The first speech was given by Wojciech Hermeliński, former Chairperson of the National Electoral Commission and retired judge of the Polish Constitutional Tribunal. It concerned the circumstances surrounding the preparations for the presidential elections planned in May 2020. The speaker provided an outline of the legal background of the situation regarding these elections during the pandemic. First, no state of emergency was imposed. Instead, a state of epidemic was declared, however, with restrictions that are constitutionally possible during a state of emergency but without the effect of postponing the elections. Then special legislative regulations concerning the process of preparing for the presidential elections were briefly discussed, including changes to postal voting. Next, the resulting infringements were indicated, in particular those connected with the introduction of a major change to electoral law only two months before the elections (under case law of the Polish Constitutional Tribunal, substantial changes to electoral law are prohibited within six months prior to an election), and a defective procedure including violations of some provisions of the Resolution of the Sejm (a lower chamber of Polish Parliament). The last problem discussed was the exclusion of the State Electoral Commission from the preparative process of the elections by an administrative decision issued by the Polish Prime Minister. In conclusion, the following absurdity was highlighted. Although the President signed the discussed controversial bill, the result of the political agreement was that presidential elections did not take place.
Next, Professor Krzysztof Prokop presented his remarks about the state of emergency which was not imposed in Poland. First, he pointed out that although under Article 232 of the Polish Constitution, the Council of Ministers could have imposed a state of natural disaster, which seemed appropriate for the pandemic, the Council did not do so. Instead, only a state of epidemic threat was introduced, followed by a state of epidemic. The problem is that these are not extraordinary measures under the Polish Constitution and their introduction does not allow the state to impose extensive restrictions on human rights. This raises a question about the consistency of limitations introduced under Article 31 of Section 3 of the Constitution (a provision concerning the limitation of constitutional rights and freedoms in a normal situation).
Professor Agnieszka Bień-Kacała’s speech included remarks from the perspective of the system called illiberal constitutionalism. First, illiberal changes in Poland started before the pandemic and our already illiberal reality impacted the pandemic period. Second, the speaker briefly outlined the meaning of illiberal constitutionalism in Poland. A decrease in the level of human rights protection, defects in the legislative process and abuse of the rule of law, connected mainly with the attack on independence and impartiality of judges, were emphasised. According to the speaker, dealing with the crisis by using extraconstitutional measures and manipulations of electoral law was a tool to gain power. Considering our reality in the last several years, including the pandemic period, unfortunately, we can state that not only are the authorities illiberal but so is our nation, at least majority of voters. This is a problem from the perspective of liberal constitutionalism and democracy protection because only the people can ensure a safe liberal democracy. The problem is that they are not aware of it. In conclusion, it was emphasised that civic education is crucial.
Next, Professor Aleksandra Kustra-Rogatka offered remarks focused on the specific problem of the postponement of the presidential elections as a consequence of an extralegal or illegal decision. She pointed out some circumstances surrounding the decision to postpone the elections (issuing the political statement called the Kaczyński-Gowin agreement). In the opinion of the speaker, the situation where two politicians who hold no office could decide to postpone elections is the best evidence of a constitutional crisis in Poland. Then some implications of political agreement, including the role of the Supreme Court, were presented. The aforementioned agreement of the two politicians predicted the future ruling (resolution) of the Supreme Court. This was criticised by the President of the Chamber of Extraordinary Control and Public Cases of the Supreme Court (the Chamber of the Polish Supreme Court that is entitled to determine the validity of presidential elections). Nevertheless, the discussed political decision was legalised in a different way – namely, on the basis of a resolution of the National Electoral Commission.
Michał Ziółkowski, PhD, presented a paper titled “A mirage of a constitutional right to stand as a candidate under equal conditions in the time of Pandemic (Polish 2020 Election case)”. The presentation consisted of three parts. In the first part, the speaker briefly presented some facts concerning the presidential elections related to the absence of a declaration of a state of emergency. As the most important fact, changes to the Electoral Code introduced in April 2020 with general postal voting in the May elections and limited powers of the National Electoral Commission were underlined. The second part was the interpretative part of the speech regarding constitutional law terms concerning presidential elections and the right to stand as a candidate in presidential elections. According to the speaker, three constitutional provisions, interpreted in connection, are the basis of the right to stand as a candidate in equal and fair electoral proceedings. In the third part of the presentation, the speaker shared his thoughts on the equality test and offered general remarks on the mirage of constitutional rights. The speech concluded with the statement that despite the difficulty of providing equal conditions for all candidates for presidential office, it was possible to ensure privileged treatment for those candidates who were at a worse starting point than the sitting president and other candidates who had registered for the May elections.
The last speech was presented by Mirosław Wróblewski, Director of the Constitutional, International and European Law Department in the Office of the Commissioner for Human Rights in Poland, who shared some experiences from the practices connected with the presidential elections that did not happen. The speaker discussed a few cases before administrative courts relating to the following issues. The first one concerned the (in)validity of the aforementioned administrative decision of the Polish Prime Minister that was addressed to the post office. Next, some problems concerning data protection for Polish citizens were outlined connected with the transfer of personal data between the Ministry and the Polish Post. Third, some problems concerning the access to public information on details of the cost of organising these elections and actions taken by the Polish Post was discussed. In summary, the speaker emphasised that violations during the pandemic in connection with the presidential elections concerned not only electoral rights but also other constitutional rights and freedoms, such as the right to access public information and the right to protect personal data. The question for the future concerns the responsibility for these violations.
During the discussion, the following issues were raised: the validity of the (second) presidential elections and the influence of the fact that the validity of these elections may produce impact on the validity on the next elections, the phenomenon of an allegedly invalid elections from the sociological perspective of Polish voters, finally, the Polish model of the validity of elections, in particular its weaknesses concerning the potential boycott of the electoral process.
International Visegrad Fund project no. 22120065. (Democracy in the shadow of the pandemic in the V4 countries).
The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.