Ellen Hinsey reports on recent developments in Poland during lockdown, where the May 10 presidential election was not officially canceled, nor was it held.
OVER THE LAST TEN YEARS we have seen the progressive rise of authoritarianism in Europe and now also in the United States. Restrictions on the media, limits on freedom of assembly, and the dismantling of the separation of powers have taken different forms in different countries. In Central Europe, over the last two months, countries have used COVID-19 lockdown conditions to pass emergency laws or introduce further repressive measures. In Poland, the governing Law and Justice party attempted to push through legislation that would have resulted in a presidential election that was neither free nor fair. The story suggests a cautionary tale for us all.
In Europe, the uncertainty brought about by the pandemic comes on the heels of a twelve-year period in which—after the 2008 financial crisis, the 2015 refugee crisis, and the recent rise of anti-democratic sentiment—social and political assurances have steadily been eroded. We are aware that we are facing not only a pandemic of exceptional proportions, but that something even more disruptive, even more dangerous, may await us. We are confronted with the most pressing questions: do we have the resources to maintain our civic decency, address our errors, in short, to save ourselves?
Among the critical tools we possess to counter this moment of pandemic uncertainty—in addition to farsighted medical recommendations and scrupulous crisis management—is that of legal certainty. The last two months in Poland, as the ruling Law and Justice party prepared for a presidential election, have shown us how the basis of a country’s rule of law and legal certainty—as it pertains to the fundamental democratic freedom of free and fair elections—can be dismantled.
Poland’s State of Fog
A review of the facts: like many nations, in the face of the gravity of the COVID-19 epidemic, the Polish government sought to introduce emergency regulations to address the crisis. The Polish Constitution allows for a response to such an emergency situation under its “extraordinary measures,” including a “State of Natural Disaster,” fundamentally suited for the COVID-19 epidemic. However, anxious to carry through with the country’s May presidential elections, the Law and Justice government held off, as enacting this extraordinary measure would have legally triggered the postponement of all elections until the crisis’s end. Moreover, with the incumbent Law and Justice President Andrzej Duda leading in the polls—national confinement having provided him with unequaled campaign visibility—such a step was not deemed advantageous. Instead, on March 13 the Polish Government introduced by decree a “State of Epidemic Emergency” (later changed to “State of Epidemic”). Legal scholars sharply questioned the proportionality of the restrictions introduced under the State of Epidemic (not among the constitution’s extraordinary measures), as well as its indefinite duration, but we leave that debate for another time.
Two weeks later, in early April, a sequence of events began to unfold that would gravely undermine Poland’s legal certainty regarding free and fair elections. Although voices, including the Polish Association of Epidemiologists and four hundred legal experts, increasingly called for the election’s postponement—and despite the fact that the country’s Constitutional Tribunal holds that no electoral law should be modified less than six months prior to an election—on April 6 Law and Justice introduced a special election draft act and pushed it though the Sejm in a single day. Defying growing opposition, the draft act proposed, with now only a month remaining before the presidential election, to organize national postal voting for 30 million citizens, a task never before attempted in Poland. It also included a highly disputed restructuring of the electoral process itself, in particular by transferring the organization of the elections from the country’s independent National Election Commission to the Ministry of State Assets, run by Jacek Sasin, a Law and Justice appointee.
Due to the controversial nature of the proposed changes under pandemic conditions, critics of the legislation contended that if the elections were to go forward, they would effectively be conducted without a genuine competitive campaign, with inadequate assurances for the ballots’ delivery and inviolability, and without requisite provisions for overseas voting. These doubts, and numerous others, were expressed not only by the country’s political opposition, but also by certain key politicians aligned with the leading party, and disagreement over the bill subsequently created a split between the majority Law and Justice party and its coalition partner Agreement, led by Jarosław Gowin, who resigned in protest.
Future legal scholars may well single out May 6, 2020, as a particularly dark day for Poland’s constitutional history. On that day, with chaotic and incomplete postal voting preparations, and only four days to go, party leaders Jarosław Kaczyński and Jarosław Gowin, newly reconciled, issued a joint statement announcing that the presidential election—though constitutionally required to be held on May 10—would not be officially canceled, but neither would it be held (stay with me here), with the understanding that the Polish Supreme Court, which oversees the legitimacy of elections, would consider such a (nonexistent) election invalid, and having invalidated it, empower the Marshall of the Sejm to set a new date.
Here it seems, having left behind legal certainty, one reaches the abyss of the legally absurd.
To further complicate matters, even if it wished to do so, the Polish Supreme Court is only empowered to issue such a verdict on the basis of an election report by the National Election Commission. On election night, the National Election Commission would announce that since there had been no election, there had been no candidates, and no such report would be forthcoming.
Thus, on Sunday, May 10, 2020, the Polish nation awoke mystified, to no ballots, no election, and to candidates who had vanished. In short, fog and uncertainty reigned.
Subsequently (based on the National Election Commission’s legal fiction of nonexistent candidates, a contested fact) it was announced that the Marshall of the Sejm, as if ex nihilo, would set a new election date. After two months of contentious struggle, the opposition parties accepted this proposal.
At this writing, it appears that the Poles will have hybrid postal and in-person elections at the end of June. With the cost, however, of a clear disregard for fundamental principles of rule of law.
Life after COVID-19: Dancing on the Precipice
What can we learn from this cautionary tale? As we remember, a number of other high-stakes presidential elections are approaching—notably in the United States—where human safety and democratic legal certainty are being weighed in the balance of political ambition. The implications of basing one’s reelection on the compromised safety and lives of those one is mandated to serve deserves no comment. In this time of global upheaval, however, what we can know is that either we fight to uphold the integrity of our legal systems—with the hope they will be there for us after the COVID-19 crisis—or we can squander them now. To make such a dangerous trade-off now with our rule of law and legal certainty, to be sure, is at our greatest peril.
This special dispatch is a follow-up to Hinsey’s earlier pieces on Poland, which are available here.
Ellen Hinsey is NER‘s international correspondent. She has lived in Paris since 1987, and witnessed firsthand the fall of the Berlin Wall and the Velvet Revolution in Czechoslovakia. She has extensively reported on the rise of authoritarianism in Central and Eastern Europe. Her work has appeared in publications such as the New York Times, the New Yorker, the Irish Times, Die Welt and Poetry. Her most recent books are Mastering the Past: Contemporary Central and Eastern Europe and the Rise of Illiberalism and The Illegal Age, a poetic investigation into the twentieth-century’s legacy of totalitarianism and the rise of political illegality.