Paweł Daroszewski

In the justification to the judgment of 3 November 2006 in case K 31/06, the Polish Constitutional Tribunal indicated that the constitutional standard of establishing the norms of electoral law requires that significant changes to the electoral law be made no later than 6 months before the start of procedures for the organization of elections. The Tribunal emphasized that this principle is an irremovable normative element of the content of Article 2 of the Constitution (the democratic rule of law clause). As a consequence, the violation of the principle of legislative silence may prove amendments to the election law are unconstitutional. Compliance with this rule not only ensures the conditions for free and equal electoral competition, but also allows the adopted amendments to be subject to constitutional review and possibly corrected by the parliament. The Tribunal stipulated that exceptions to this rule may arise only from exceptional circumstances of an objective nature. The Tribunal maintained this view in its later rulings.

The changes to the electoral law introduced in the first half of 2020 aroused considerable controversy in relation to this rule. The occurrence of the pandemic may be interpreted as a circumstance in the face of which the principle of legislative silence may be departed from. However, it seems that the proper response of state authorities to the outbreak of the Covid-19 pandemic should consist in introducing one of the constitutional emergency measures. According to the Polish Constitution, it would be then impossible to hold elections during the  state of natural disaster or state of emergency and for 90 days after their end (Article 228(7) of the Constitution). Instead, presidential elections took place in the second quarter of 2020, preceded by numerous changes to the electoral law. Therefore, in a situation where the relevant state authorities have not decided to introduce one of the emergency measures, introducing amendments to the electoral law within the indicated period should meet the legislative silence standard. In my opinion, an admissible exception to this rule in the period of a pandemic is the extension of the possibility of postal voting, but not the exclusion of other methods of voting, which the legislator tried to do in the Act of 6 April 2020.

The experience related to the amendment of the electoral law in the period immediately preceding the election process may be repeated in Poland as early as 2023. The leader of the ruling party has announced that a draft amendment to the electoral law will be submitted to the Sejm. As the term of office of the Sejm ends in the fall of 2023, it seems likely that the announced changes will enter into force later than required by following the principle of legislative silence. The introduction of significant changes, e.g. concerning the distribution of seats in less than 6 months before the announcement of parliamentary elections, should raise serious doubts as to compliance with the constitutional regulation. The enactment of the announced changes would be another example of undermining the principle of legislative silence. Such actions of the legislative authority could raise doubts as to the validity of the upcoming parliamentary elections.

October 2022

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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.