Sadurski, Wojciech

English

<intR>²Dok

Poland’s Elections: Free, perhaps, butnot FairWojciech Sadurski 2023-09-20T15:32:28Poland’s upcoming parliamentary elections will be the country’s most important votesince the historic elections of 1989. These had ushered in the first non-Communistgovernment in Central and Eastern Europe since the Soviet’s establishment of“real socialism.” The momentous character of the 15 October 2023 poll might bethe only proposition upon which the incumbent PiS (Polish acronym for Law andJustice Party, which rules in a coalition with some small satellite groups, formingthe so-called United Right) and the democratic opposition (with Donald Tusk’s CivicCoalition as the major part) agree.  Everything else is a matter of deep disagreement– the deepest one can imagine in today’s world of polarized politics. For PiS, athird consecutive victory (following its success in 2015 and 2019) is necessaryto consolidate its model of the state unburdened by the division of powers and tocontinue its defiance of Brussels’ bureaucracy. Tusk’s victory, meanwhile, in theirview would mean a loss of sovereignty in the face of dangers posed by the anti-Polish EU, read Germany. For the democratic opposition, with the Civic Coalition(KO), the Left and the centre-right Third Way, their victory is a prerequisite forarresting further backsliding of Poland into authoritarianism and possibly “Polexit”from the EU. The stakes could not be higher.Notably, PiS’s drive to win is not only fuelled by its vision of an illiberal, centralizedand nationalistic order. Rather, after 8 years of unprecedented and comprehensivedestruction of the constitutional system and massive political corruption, withenormous funds moving from the public purse into the personal wallets of PiSloyalists, an electoral defeat would end the life they know and love. To the tens ofthousands of people, who have invested their hopes and plans with PiS, it will meanthe end of enormous riches they do not deserve, prominent positions they are notqualified to occupy, and for several, it will likely mean jail time for offences such asbribery, corruption, mismanagement and abuse of office. In a very painful and literalsense then, PiS cannot afford to lose these elections.If the elections in October were fair, PiS’ defeat might be plausible though by nomeans certain. Yet, the preceding sentence identifies a condition we already knowwill not occur. In this analysis, I map the multiple ways in which the system has beentilted in favour of the incumbents such that, irrespective of what October 15 mighthold, it is clear that the elections are badly rigged. While I will only describe the moststriking aspects of this unfairness, they all form parts of a system and thus shouldnot be looked at in isolation. Kaczy#ski is a shrewd politician. There’s a methodto his (apparent) madness. For the opposition to win is thus a Herculean task, farexceeding what an opposition ordinarily has to face. Herculeses do appear in politics– but not that often.- 1 -Pork-barrel PoliticsWhile this occurs, to some degree, everywhere, PiS has engaged in policies of hugeand shameless buying of consumers’ gratitude, hoping the handouts will be repaidat the ballot box. In an economy where so much is state-controlled, with the largestcompanies and banks having the state as their owner or majority shareholder andthus able to control their management and policies – the capacities for pork barrelpolitics are much higher.The good Santa began throwing gifts at his grateful clients in late Spring this year:a significant increase of the famous monthly 800+ family subsidy, paid per childand not needs-tested, no-toll highways, ex-post lowering of the electricity rates,bonuses for teachers, and a 14th “monthly” pension for retirees. The main gas andpetrol company Orlen has been artificially lowering petrol prices at its gas stations(in contrast to the worldwide trends), and very recently, on 6 September, the centralbank NBP (fully subordinated to Kaczy#ski) cut interest rates by a hefty 0.75%,to lower mortgage payments. The move, of course, greatly weakened Poland’scurrency, the zloty, but for the PiS electorate this is not particularly relevant. It is alsobound to produce strongly inflationary results, but this effect is delayed in time. Thepurely political, pre-election character of this huge cut has not been lost on economicobservers.In addition, plenty of public money goes into fully PiS-organized local entertainmentand gastronomic events, so-called “800-plus picnics”, designed to “advertise” thesegovernment programs.  While this is unashamedly partisan propaganda, its paradingas government public information means it does not count as campaign spending.Changes in the Electoral LawOn 26 January 2023, PiS pushed through several amendments to the so-calledelectoral code – a statute regulating elections, in contravention of an unwrittenrule against changing the election rules soon before the election. Designed toprevent incumbents from changing the rules of the game in their favour as theelection approaches, the rule was established by the then still independent PolishConstitutional Tribunal – as requiring a minimum 6 months (a minimum minimorum,as the Tribunal said in its judgment Kp 3/09 of 28 October 2009) of distance betweenthe new election rules entering into force and the date of the announcement of thedate of the forthcoming elections. The new law entered into force on 31 March 2023while the President announced the election date on 8 August 2023, exactly 4 monthsand 8 days later. Quite a lot less than the constitutional minimum minimorum.PiS has made several changes, the most important of which is an increase ofvoting commissions in small population districts. Coincidentally, these districts arecomposed of PIS’ most faithful electorate: small towns that are populated by andlarge by older, less educated voters. The new law lowered the minimum numberof residents necessary to set up a district from 500 to 200, ostensibly to help them- 2 -vote. Yet, more voting facilities in villages will also have the side-effect of increasingturnout amongst PIS core electorate.Two other changes also warrant some attention. The first is a new mode of operationfor the election commission after the vote’s closing. Instead of distributing all theballots among some sub-groups of the commission, now the commission’s president,or a person nominated by him/her, will need to pick up each ballot, read its content,and make it visible to all members of the commission. Subdividing the task isprohibited. Secondly, the entire business of counting votes, signing the results andpassing them to the central electoral bureau needs to be done within the space of 24hours. Documents delivered after that time must be disregarded.Both rules may at first blush seem sensible, especially where there’s a lack of trustin official institutions, including election committees. Yet, the picture looks differentif we consider their impact on the votes of Polish expatriates. The small numberof voting stations abroad – in particular in the UK, Ireland, and the United States– are already overburdened with the number of voters they ought to service. Forexample, I had to wait four hours to cast my vote in Milan, Italy in the 2019 elections.Given these existing delays and problems, there is a high likelihood that these votingstations won’t be able to meet the new, rather exacting requirements that each ballotbe read by the entire commission and that the count be concluded within 24 hours.Consequently, some votes will not be counted, with the effect that none of the votesin these districts will be counted.Note that the foreign districts whose votes might be discounted due to the newrules overwhelmingly vote against PiS. In 2019, nearly 39% of Polish citizens votingabroad chose KO and only 24.9% voted for PiS (in Poland, meanwhile, KO received27% and PiS 43%). And the numbers are not insignificant: 89.000 voters in the UK,46.000 in Germany, and 30.000 in the US (one of few places, alongside Canada,where the Polish diaspora voted predominantly for PiS).While PiS was very eager to change some rules on voting, it ignored the CentralElectoral Commission’s repeated request for a legislative update of the districtboundaries. Due to demographic and economic changes, the old boundaries hadbecome increasingly anachronistic, such that votes in different districts possesseddifferent weights. Some inequality in this regard is inevitable. However, thedifferences in weight can be as high as 1:2, meaning that it takes twice as manyvoters to elect one representative in one district compared to another. Obviously,the vote counts for much more in small districts, which are PIS strongholds, than inhuge, densely populated ones, which are reservoirs of liberal, pro-democratic voters.Given that equalizing the weight of votes would have been to the net disadvantage ofPIS, it is no wonder that the Electoral Commission’s requests fell on deaf ears.Media ImbalancePublic media in Poland are “public” only in name. State-funded networks such asTVP, in particular, dispense one-sided, governmental propaganda, attacking theopposition and praising PiS and its Leader, both during the main evening news and- 3 -their public affairs channel. (A disclosure: TVP sued me for defamation, both in acriminal and in civil trial. While I have been fully acquitted in the criminal trial, ina procedure that went all the way up to the Supreme Court, the civil proceedingsare still pending). News stories never present opposing views and embarrassingor inconvenient events for the ruling party – whether corruption affairs or foreigncriticisms of the government –are simply ignored. Opposition politicians have no rightof reply and the commentators are carefully selected from among PiS propagandists.Private, commercial networks are also thoroughly pro-PiS. In exchange for receivinga lion’s share of advertising funds paid by state-owned companies, they praisethe government and PiS, and denounce the opposition. Further, two years agopetrol and gas company Orlen (contrary to the most fundamental rules of economicrationality, and indeed to its business profile) purchased nearly twenty localnewspapers from a German-Swiss media conglomerate. Its 800 thousand copiessold every week also provide vehement support for PiS and the government.ReferendumFollowing Viktor Orbán’s example, PiS decided to combine the October electionswith a referendum. Because the 2003 law on national referenda did not allow for ajoint vote, the law was duly changed almost overnight in July and entered into forcein August: with a comfortable majority in the lower chamber called Sejm, PiS swiftlyoverrode objections from the Senate (where the opposition has a thin majority). PiSparliamentary majority then amalgamated parliamentary elections with a referendum,to be held at the same time, in the same locations, with the same committees, andindeed in the same ballot procedure. Thus, voters will receive three ballot papers:elections to the Sejm, the Senate, and the referendum ballot.Combining elections with various referenda or plebiscites is often done inunimpeachable democracies, for all sorts of (good) reasons, including (cost)efficiency considerations and higher turnouts. But PiS is not a democratic party,playing by the democratic rules of the game. Consider first the four referendumquestions: Are you in favour of (1) “selling off” state companies to foreign entities, (2)accepting thousands of illegal migrants, as a result of coercive relocation decided bythe European bureaucracy, (3) destroying a “barrier” (a wall) on the Polish-Belarusborder, and (4) making people work longer before they retire. (For the full wordingand an excellent discussion, see here).These are not typical referendum questions: voters are not asked to opine onlegislation contemplated by a government keen to consult the vox populi. No politicalparty in Poland has any of these proposals in its program. Nor are voters beingasked in good faith. Asking about a “sell-off” (Polish: wyprzeda#), carries with itan obvious pejorative implication (it is like selling off family treasure below its realvalue), necessarily implying a negative answer. Such bad faith is even more obviousin the question concerning the admission of “illegal migrants”, coming as a resultof “coercive relocation”, as allegedly determined by the “European bureaucracy.”The loaded language and framing of each question render “No” the only reasonableanswer, which, of course, PiS officially and loudly urges citizens to give.- 4 -There are at least three ways in which the referendum fundamentally upsets thefairness of the election. First, all four “questions” imply policies that PiS attributesto the opposition, particularly the Civic Coalition headed by Donald Tusk. Thisestablishes continuity between the electoral campaign and referendum questions.The referendum questions imply that the opposition will open the gates to theMiddle-Eastern and African refugees at the Poland/Belarus border, against whomthe wall was built by the PiS government; that it will admit thousands of “illegalmigrants;” that it will massively privatize state-owned companies, thus “selling off”common assets, probably to foreigners; and that it will raise the retirement age, thus“forcing people to work until their death”, as a PiS slogan goes. The referendum isthus no attempt to consult voters on envisioned legislation but a way of bolstering thepartisan, anti-KO and anti-Tusk rhetoric.Second, the referendum releases to PiS an infinite amount of funds, outside anycontrol normally related to campaign funding. PiS has access to incomparably higherfinancial assets than the opposition, having captured all key, state-owned industries.While there are clear campaign spending limits, policed by the Election Committee,these only apply to elections, not to referenda. Indeed, there are no limits onspending, donations, and contributions, and on who can donate to a referendumcampaign. Most of the state-owned companies, through their foundations, havealready registered their willingness to donate to the referendum campaign. They willundoubtedly support the No side, given that they are fully dependent on PiS. To theextent that the referendum campaign will be indistinguishable from a PiS campaignto any voter, PiS thus enjoys a huge advantage in terms of campaign spending.And third, embedded in the referendum is a direct threat to the secrecy of voting.The best strategy for the opposition to mitigate the referendum’s political fallout is tourge a de facto boycott. Thus, the referendum will be invalid if the turnout is lowerthan 50% of those eligible to vote. However, to make a boycott effective, a votermust refuse to take the referendum ballot paper from the commission official, anddemand that the refusal be recorded on the ballot list. The moment a voter takesa referendum ballot form, they are recorded as participating in the referendum andthereby contribute to the turnout, irrespective of what they do with it.The declarations required to effectuate the boycott cannot be made in secret. Andsince only anti-PiS voters will boycott the referendum in that way, they are a publicadmission to being anti-PiS. In PiS-dominated neighbourhoods – especially insmall townships and villages- such a surrender of the privacy of one’s vote may bepsychologically costly, and fraught with unpleasant consequences.Judging Election DisputesWith the law on the Supreme Court of 2017, PiS also established the brand-newChamber of Extraordinary Control and Public Affairs to adjudicate any electoraldisputes. This anodyne name hides a group of PiS sympathizers who have all beenappointed by the President of Poland on the recommendation of a newly set upNational Council of Judiciary (KRS, is the Polish acronym). The judges-membersof the new KRS are elected by the Sejm, i.e. by the PiS majority. Before its capture- 5 -by the executive, the Polish Supreme Court, in the famous resolution of its threecombined chambers of 23 January 2020, minced no words when it proclaimedthat the Chamber cannot “be considered a court” because all its members havebeen appointed in a defective procedure” (para 3). Such a body will be in charge ofproviding the authoritative resolution of any electoral disputes.*The length of this piece reflects the magnitude of the unfairness that Poland’sopposition has to face in this election. The unfairness is multifaceted, and itsindividual elements support and magnify each other, producing a toxic effect. Thislist of the sins committed by PiS is far from exhaustive: I have not even mentioned“The Law to Take Out Tusk” which has now entered into force, with a kangaroocourt already set up peopled with fanatical right-wingers happy to serve PiS’s aimto eliminate (politically) Kaczy#ski’s arch-opponent. The European Commission’sinfringement procedure against Poland in response thereto won’t undo the damagethose show trials will inflict in Warsaw.The opposition may still win, but they have to fight a steep, uphill battle. They arein a boxing ring with a ruthless opponent armed with a knife and accompanied byhis thugs, capable of changing the rules as the game progresses, and the umpirebought by his team.- 6 -

Poland’s Elections: Free, perhaps, but not Fair

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00015845/Polands_Elections_Free_perhaps_but_not_Fair.pdf

Poland’s Elections: Free, perhaps, but not Fair

Abstract

Similar works

Full text

Available Versions

<intR>²Dok