By Ewa Siedlecka
No more independent National Electoral Commission. Poland now has a political organ instead – something similar to the new National Council of the Judiciary (KRS). And what is more, its members can be fired.
This particular “good change” cannot be accused of contravening European standards – at least at the legal level – because in most countries electoral organs are chosen politically.
Previously, Poland’s National Electoral Commission (PKW) included judges appointed by the presidents of courts – the Supreme Court, the Supreme Administrative Court, and the Constitutional Tribunal – and politicians had no say in the process. This was an innovative approach, which the Venice Commission held up to other countries as a model to imitate.
Who are the new members of the PKW?
But that is now over. On 20 January, President Andrzej Duda appointed the new members of the PKW. They comprise seven people with legal experience put forward by parliamentary caucuses as well as two judges named by the president of the Constitutional Tribunal and the president of the Supreme Administrative Court. The ruling Law and Justice (PiS) party’s nominees were:
- Zbigniew Cieślak – a professor at Cardinal Stefan Wyszyński University in Warsaw, and between 2006 and 2015 a Constitutional Tribunal judge. Cieślak has links with the Catholic Church and was a member of the episcopate’s historical commission investigating the problem of lustration. While active in the tribunal he remained in the commission and involved in issues of interest to the church. He was also a member of the PKW in its previous term, nominated by Constitutional Tribunal president Andrzej Rzepliński and appointed by the then Polish president, Bronisław Komorowski.
- Dariusz Lasocki – a legal counsel and Warsaw city councillor representing PiS. In PiS’s first term in office he worked in the prime minister’s chancellery.
- Arkadiusz Pikulik – a barrister and businessman, as PiS presented him in parliament.
Two PKW members were nominated by the opposition Civic Coalition:
- Ryszard Balicki – a professor and constitutionalist from the University of Wrocław and frequent critic of PiS’s “reform” of the judiciary.
- Konrad Składowski – a professor from the University of Łódź.
Another parliamentary group, The Left, nominated Liwiusz Laska, a doctor of law and barrister specialising in labour law, and in 2016–18 vice-president of the labour law codification commission.
Kukiz’15, meanwhile, recommended Maciej Miłosz, a barrister and State Tribunal judge.
The president of the Supreme Administrative Court nominated Sylwester Marciniak, its press spokesman, who also served in the PKW’s previous term. Marciniak has not spoken about PiS’s judicial changes publicly. Despite his position, the only statements issued by him in the public domain are the SAC press spokesperson’s official signed bulletins.
The Constitutional Tribunal president nominated Judge Wojciech Sych, a doctor of law. In just two years, between 2017 and 2019, he passed through the Supreme Court (nominated by the new KRS) and Constitutional Tribunal in turn. He spent less than half a year as a Supreme Court judge. As a Constitutional Tribunal judge he became a member of the PKW last year, and will therefore be continuing his work.
A political PKW: PiS has real power over the electoral process
So we have a PKW composed 80% of political nominees. And two judges whose careers are visibly at the ruling party’s disposal. PiS have influence over almost half of the PKW’s members. The term of members chosen by the Sejm lasts nine years, but they can be dismissed “at the reasoned request of the designating entity”. It is the president who dismisses, with full discretion over what he deems “reasoned”.
This means that the members of the PKW are dependent on the political parties that nominated them. The two judges, who can also be dismissed “at the reasoned request of the president”, depend on the heads of the Supreme Administrative Court or Tribunal.
PiS has gained real power over the electoral process. It has a majority in the PKW, while also electoral protests and the validity of elections are ruled on by the Supreme Court’s Chamber of Extraordinary Control, whose appointments were made under the party’s control.
Among the factors that could decide the result of elections are the number of constituencies and their boundaries. This is determined by legislation (on which PiS has a monopoly), local government, and electoral officers appointed by the Ministry of Interior and Administration and the PKW.
By controlling the PKW, PiS also has control over party expenditure. The PKW can question party spending, and approves annual reports and those from election campaigns. And were it to have reservations over PiS’s accounts, in any case the Supreme Court’s Chamber of Extraordinary Control would have the final say.
This article was originally published by Polityka here, and has been translated into English by Ben Koschalka.