Journalist Marcin Makowski spoke with Marcin Matczak, a professor of law at the University of Warsaw and constitutionalist, about the legal confusion surrounding Poland’s presidential election.
Voting was supposed to to take place today but is not being held after the leaders of two of Poland’s ruling parties, Jarosław Kaczyński of Law and Justice (PiS) and Jarosław Gowin of Agreement (Porozumienie), agreed a deal on Wednesday that foresees the Supreme Court invalidating today’s non-election and then a new one being called instead.
The interview, originally in Polish here, is republished with kind permission of Wirtualna Polska.
Marcin Makowski: How do you explain from a legal point of view what is currently happening regarding the presidential election? What constitutional situation are we in at present?
Marcin Matczak: I think that above all we are in an unconstitutional situation. At the moment I actually know one thing, which alarms me greatly. According to the Polish constitution, on Sunday an election is supposed to take place, which was “cancelled” on Wednesday evening by two politicians after absolutely unofficial discussions on Nowogrodzka Street [at the Law and Justice party headquarters]. Let’s assume that the Supreme Court goes along with the cancellation, which would in any case be rather surprising. From a legal point of view, all that is clear is that something has gone very wrong, and the constitutional obligation to bring about democratic elections has not been fulfilled. Instead, we have an attempt to implement an alternate arrangement which in itself is dubious. This is a serious problem for democracy.
On the other hand, the architects of this agreement, Jarosław Kaczyński and Jarosław Gowin, claim that they are not making decisions on behalf of the Supreme Court. The election will not take place, so the announcement of a new one results from this fact, and not their will.
Look how impersonal the language they use is: “the election will not take place”, “there will be no election”, “it is the effect of a process”. No. The election was up to specific people whose job it was to deliver it, and who did not complete this task. Please understand that I do not want to concentrate on the past, because they say that a good manager should always be able to get out of a problem and take a step forward. I just want to pause for a moment and reflect on what happened. In a democratic state it should not possible for two people – even politicians – to meet and decide to postpone an election.
That is written in the constitution and other laws. Full stop. The basic error that was made at the outset of the postal voting bill that was passed on Thursday was that the assumption was made that elections could take place in the middle of a pandemic. Everything started from that. This was why the constitution foresaw 20 years ago the possibility of introducing a state of natural disaster, so that the current situation could not arise. We are in chaos that could have been avoided.
Do you not see any positives?
Most of all I see legal doubts. What is the Supreme Court supposed to rule on when no vote took place? How can you assess the validity of elections that did not take place? After all, comments and protests can be lodged in response to two issues: whether a criminal offence was committed against the election, or whether something happened that violates electoral law. It is hard to commit an offence during an election that does not happen. So it is unclear what the Supreme Court is supposed to investigate and what voters might protest about. Perhaps there’ll be an anonymous internet user who will send something, but the judges will have their work cut out. You just have to look what happened in 2015. In the resolution of the Supreme Court it simply states that the validity of the election of Andrzej Sebastian Duda to the position of president was confirmed. Now they won’t even have something like that to declare.
It looks like a stalemate. Is there no way out?
Let’s assume that the court will apply the constitution directly and not get into any procedural issues concerning protests. It will simply declare: there was no election, so in a state of necessity we confirm its invalidity on the basis of Art. 129 of the constitution.
In theory we move into the same procedure as if the president resigned his post, and follow an accelerated procedure regarding the organisation of the next vote. Within 14 days the speaker of the Sejm, Elżbieta Witek, announces the next election and it takes place within 60 days of being announced. If the Supreme Court behaves in this way, it will open the door to this solution, but I would like to stress that this will be a new election. One that should take place from scratch – with nominating candidates and collecting signatures.
But the government wants to make things easier for the candidates who have already collected signatures, and release them from the obligation [of having to collect them again]. Perhaps that is a sensible solution?
Legally there is no such option. The signatures were collected for a specific objective, for the election on 10 May. Since the election calendar is reset, everything must be reset. There will be arguments, course, that we can’t stick rigidly to procedures because of the times we’re in, but that damages the state. What if someone wants to withdraw? Or if someone else wants to stand in the election? It’s possible, after all. What then? How should they collect signatures in such a short time in a pandemic situation? The law is a rather precise machine.
Say at some point someone fails to fulfil their duty, so for instance doesn’t declare a state of natural disaster and pushes for elections despite everything. First they come up with something, then someone else does, and in the end something gets broken. What we have at present is a pathological attempt to patch up holes in a leaking ship. It will backfire on us all. We are creating a precedent that could be repeated at the next elections if it suits the government.
In terms of the alternative variants, does the current one seem the best possible to you? Maybe it was the lesser evil out of other bad solutions?
I refuse to take part in assessing violations of the constitution based on which was the smallest and which was the biggest. Again I stress that we have a state of natural disaster and it should be used. The rest is secondary. We can debate, of course, but what do we compare to what?
Perhaps for example the current variant with the hypothetical scenario of the resignation of the president? Or with the speaker of the Sejm asking the Constitutional Tribunal about changing the election date?
Right, but a question to the Constitutional Tribunal can also be criticised from all sides, so perhaps indeed it would be better if the president resigned? Then at least we’d have clarity and wouldn’t need to play games declaring the election invalid and forcing the judicial branch into something. Since you asked me for an assessment, that solution would be better.
Civic Platform [the largest opposition party] said that, if the election took place on 10 May, their candidate, Małgorzata Kidawa-Błońska, would not take part, because it is illegal. Do you think an election taking place in summer according to the rules we spoke about should be judged in the same way, or should we swallow all its deficiencies like a bitter pill and simply participate?
That depends on how it will be organised. There are there conditions it must fulfil to be legal. First, there must be enough time to conduct a normal election campaign, so the calendar can’t be very short, because an election is not just the voting. The voting is the finale. Second, it must be possible to hold the campaign. If the pandemic restrictions are still binding, again there will be doubts over equal opportunities. Third, postal elections are an extremely difficult challenge for the whole country. There has to be a guarantee they will be universal and secret, so they must be meticulously prepared, and people have to know how to vote so they don’t make a mistake. I do not know if that is possible at such a speed.
These are all comments of a general nature. But what decision have you taken personally – will you take part in a postal election?
I will observe what happens in reality, because it might turn out that the politicians will come to their senses and the calendar will be slightly extended, for example to September. If the rest of the conditions mentioned earlier are fulfilled, I think I could take part, but that scenario is unlikely. I fear that the government will accelerate it, we’ll have a re-run, and then the election will simply be illegal.
Translated by Ben Koschalka.
Main image credit: Bartosz Banka/Agencja Gazeta