Paweł Daroszewski
The Act of 6 April 2020 introduced mechanisms that can be equated with the concept of compulsory voting, understood as the obligation to vote, which occurs in 22 countries around the world, amongst others such as Belgium, Australia, Italy. Legal regulations in this aspect are varied, but most often the abstention from compulsory voting is punished with a fine.
The most important change on this act was to make postal voting the only method of casting a vote in the upcoming presidential elections (Article 2(1)). According to Article 2(4) of the Act, voters were exempt from the need to apply for a voting package. Consequently, everyone entitled to vote would be given a ballot. In order to return the ballot paper on the election day, one had to go to a special inbox in the commune where they live, designated by the postal operator (Article 5(2)). Although the Act did not directly express the obligation to send the vote, such a norm could be identified from the penal sanctions provided by Article 18 of the Act stipulated that anyone who steals, modifies or counterfeits a ballot was subject to a fine. Some lawyers claimed that failure to return the electoral package could result in criminal liability. It is worth remembering that in the original version of the bill, which was changed during the work in the Sejm, the penal provisions stipulated that anyone who destroys, damages, hides, modifies, counterfeits or steals the ballot paper is subject to imprisonment for up to 3 years. Thus, compulsion to vote appeared in the Polish legal system in a veiled manner. These regulations were repealed in 2020.
Article 62 of the Polish Constitution provides the right to vote. In Poland, persons entitled to vote are those who are at least 18 years of age and are not incapacitated or deprived of public rights. Article 62 of the Constitution proves that elections in Poland are universal. The right to vote, as expressed in the Polish Constitution has a libertarian character, which makes it possible to decide not to participate in elections. Polish constitutionalists claim that no obligation to vote can be inferred under Article 62. Electoral compulsion in Poland should be established only in the norm of constitutional rank. Therefore, the above-mentioned provisions raise significant reservations as to their compliance with the Constitution.
The provisions of Act of 6 April 2020 were quickly repealed and had no opportunity to be put into practice. This is probably why there has been no serious discussion of compulsory voting in Poland. If the legislature in the future decides to impose the obligation to vote, it should not use the standard of legislation at the time of the pandemic. Such a solution should be introduced by means of a constitutional amendment. It is worth noting that in a democratic state ruled by law, it would be unacceptable to establish a criminal sanction of imprisonment for failure to comply with the obligation to vote. Making it compulsory to vote requires a comprehensive debate in which the pros and cons of such a solution will be considered. Due to the fact that establishing the obligation to vote by amending the Constitution would change the normative content of Constitution’s second Chapter, therefore, it would be subject to a confirmatory referendum (Freedoms, rights and obligations of a person and a citizen) according to Art. 235(6) of the Constitution, this amendment could be subject to approval in a nationwide referendum.
October 2022
__________________________________________________________
The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.