Poland’s prime minister, Mateusz Morawiecki, committed a “gross violation of the law”  and the constitution when ordering preparations for elections earlier this year, a court has ruled.

The case relates to presidential elections that were scheduled for May and which the government sought to organise as an all-postal vote despite relevant legislation authorising that not having been passed. The elections were eventually abandoned and new ones called.

Today, judges Grzegorz Rudnicki, Marta Kołtun-Kulik and Tomasz Stawecki of Warsaw’s Provincial Administrative Court noted that the only body authorised to oversee elections is the National Electoral Commission (PKW).

“The manner of [conducting] elections cannot be restricted by any actions of the executive branch,” wrote Rudnicki. “[Poland] cannot be considered a state of law if [state] organs infringe the provisions of the law.”

The judges also declared that the decision to hold a postal-only vote meant that “voters were not guaranteed an equal, direct and secret ballot”, reports RMF24.

In response, the government’s spokesman, Piotr Müller, said that they found the ruling “surprising” and believe that the “decision taken by Prime Minister Morawiecki regarding the elections was made in accordance with the law”.

“After acquainting ourselves with the justification for the judgement, we will consider an appeal,” he added.

The controversy relates to elections that were eventually abandoned amid controversial circumstances. The presidential vote had originally been scheduled for 10 May, but preparations were thrown into disarray by the coronavirus pandemic and associated lockdown.

The ruling Law and Justice (PiS) party was determined to hold the elections, arguing that it had a legal obligation to do so. Opponents, however, claimed that the government was seeking to exploit the pandemic to help secure victory for the incumbent president, Andrzej Duda, a PiS ally.

On 6 April, the PiS-led majority in the Sejm, the lower house of parliament, supported a bill that would have allowed the elections to take place entirely by post. While the legislation was still being considered by the opposition-controlled Senate, and therefore was not in legal force, the government already began making preparations to hold the vote.

That included, on 16 April, Morawiecki issuing instructions for the post office to begin organising a postal election. The plans were overseen by Jacek Sasin, a deputy prime minister who heads the ministry of state assets.

Poland’s postal election enveloped in confusion as government pushes ahead before legislation passed

Opposition politicians, legal figures, the electoral commission and international organisations strongly criticised the government’s actions at the time. They are “illegal, to say the least”, said the speaker of the Senate, Tomasz Grodzki.

A number of local authorities refused to comply with orders to hand voters’ data to the post office, arguing that the election was being organised unlawfully.

There was also opposition from within the ruling camp. Jarosław Gowin, a deputy prime minister and leader of PiS’s junior coalition partner Agreement (Porozumienie), quit the government in protest against holding the election.

Eventually, Gowin and PiS chairman Jarosław Kaczyński concluded a deal whereby the May elections were cancelled – a manoeuvre the legality of which has itself been questioned. Invoices have revealed that the cost of preparations for the abandoned elections was 70 million zloty for the post office alone.

The opposition have previously called for an investigation into that outlay. After today’s ruling, a spokesman for Civic Platform (PO), the main opposition party, reiterated that “illegal spending of over 70 million zloty” must be accounted for.

After the 10 May elections had been declared void, new ones were called and held in June and July, with President Duda reelected for another term in the second round of the vote.

“Chaos that could have been avoided”: a legal analysis of Poland’s non-election

Amidst the confusion, in late April Poland’s commissioner for human rights, Adam Bodnar, launched a legal challenge against the prime minister’s order to ask the post office to begin preparations.

Today’s ruling on that challenge appears to confirm the concerns expressed by many in the build up to the abandoned election, though an appeal can still be made against the judgement. “It is crushing for the prime minister,” wrote RMF journalist Patryk Michalski today.

However, Ewa Siedlecka, a commentator for the Polityka weekly, notes that the court’s decision is mainly “symbolic”. Some organisations or individuals – such as voters whose personal data was provided to the post office – could launch civil cases. But Morawiecki and other officials are unlikely to face legal consequences, as PiS has created a system that “guarantees freedom and impunity”, she writes.

The dangers of Poland’s proposed pandemic impunity law

Müller, the government’s spokesman, today defended the actions of the prime minister in attempting to hold the election, pointing to the unprecedented circumstances under which they took place.

“Let us remember that when this decision was made, we were dealing with an epidemic…unprecedented in scale,” said Müller, quoted by RMF24. “[The prime minister] decided to hold the election…[using] the safest form of voting and within the deadline provided for by the constitution.”

“In our opinion, the contested decision was lawfully issued…[and] was aimed at ensuring the safety of citizens and the state,” he added.

Legal scholars and the opposition have, however, argued that the government should simply have called a state of emergency due to the pandemic, which under the terms of the constitution would have delayed the election.

PiS and its supporters respond that this would have entailed enormous costs for the state and created further uncertainty over the legal status of the elections and the president’s term in office.

Why Poland’s presidential election will be unconstitutional – and the result could be overturned

Main image credit: Krystian Maj/KPRM (under CC BY-NC-ND 2.0)

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