Poland’s constitutional court finds committee investigating pandemic postal elections unconstitutional

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Poland’s Constitutional Tribunal (TK) has ruled that a parliamentary commission set up to investigate wrongdoing relating to postal elections that the former Law and Justice (PiS) government tried to organise during the pandemic is unconstitutional.

However, the current government, under which the commission was established, does not recognise the legitimacy of many TK judges, including some of those who issued yesterday’s ruling.

In December 2023, the new ruling coalition pushed for the commission to be formed, arguing that the outgoing PiS government had violated the law while trying to organise the postal vote in 2020. However, PiS, which insisted it had done nothing wrong, also ended up voting in favour of forming the body.

The events in question took place in spring 2020, amid the first wave of the Covid pandemic, when PiS sought to organise presidential elections entirely by post rather than through in-person voting at polling stations. However, the plans were eventually abandoned.

Later that year, a court found that the PiS prime minister, Mateusz Morawiecki, had acted in “gross violation of the law” by ordering preparations for the elections. This year, the country’s top administrative court rejected Morawiecki’s appeal against that ruling.

The parliamentary commission set up last December – a majority of whose members are MPs from the new ruling coalition – came to the conclusion that “the apparatus of power at the time pushed hard for postal elections” in order to enhance the chances of re-election for PiS-aligned President Andrzej Duda.

It voted in favour of referring 19 people involved in the postal election to the prosecutor’s office, including Morawiecki, PiS chairman Jarosław Kaczyński and former PiS speaker of parliament, Elżbieta Witek.

In the meantime, however, a group of PiS MPs referred the resolution to establish the parliamentary commission to the TK for assessment. On Wednesday this week, the TK issued a ruling finding that the resolution had been unconstitutional.

In its justification, the TK wrote that the broad scope of competences granted to the commission and the lack of clear temporal and subject-matter limitations caused the commission to go beyond its constitutional framework, violating the principles of due process and the tripartite division of power.

However, the status of two of the three TK judges that sat on the panel which issued the ruling have been questioned by the government. One, Julia Przyłębska, is the president of the tribunal, but the ruling coalition, many legal experts, and even some TK judges have argued that her term has actually expired.

Another, Krystyna Pawłowicz, served as a PiS MP before being appointed to the TK, and the current government has argued that she should recuse herself from cases involving PiS due to a conflict of interest.

Since the new ruling coalition took office last December, the TK has issued a number of rulings finding its actions to be unconstitutional, including the establishment of another parliamentary commission to investigate to the use of Pegasus spyware under the PiS government.

In a separate development, this week prosecutors in Warsaw announced that, following the parliamentary commission’s recommendation, they have set up a special team to further investigate potential crimes relating to the postal elections.

PiS has always argued that it had a constitutional obligation to try to organise the elections safely and on time amid the pandemic, and that it followed the law in doing so.

In May this year, the TK, all of whose judges were appointed under PiS, ruled that Morawiecki acted in line with the constitution when trying to organise the elections.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Grzegorz Krzyżewski BRPO (under CC BY-NC-ND 3.0 PL)