Published on 29 March 2020A contribution on issue related to the pandemic and unconstitutional steps taken by the Polish government. There is no doubt that the essential state institutions should function as effectively as possible in the times of pandemic. It also means finding concrete and fast solutions provided in special statutes, aiming at alleviating social and economic consequences of the coronavirus outbreak. However, even when proceeding the bill known as Anti-crisis Shield (“Tarcza antykryzysowa”) that provides a financial aid for healthcare system, companies and different kinds of workers in Poland, the governing PiS party managed to introduce unconstitutional amendments to the bill

Nowicka, Katarzyna

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NOWICKA, Katarzyna Karolina

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Preparing for the pandemic elections

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Preparing for the Pandemic ElectionsKatarzyna Nowicka 2020-03-29T12:32:52There is no doubt that the essential state institutions should function as effectively aspossible in the times of pandemic. It also means finding concrete and fast solutionsprovided in special statutes, aiming at alleviating social and economic consequencesof the coronavirus outbreak. However, even when proceeding the bill known as Anti-crisis Shield (“Tarcza antykryzysowa”) that provides a financial aid for healthcaresystem, companies and different kinds of workers in Poland, the governing PiS partymanaged to introduce unconstitutional amendments to the bill. Elections within the ‘state of normality’First of all, the legal background of this situation is controversial. The PiSgovernment did not declare a state of emergency, even though the measures tomanage the crisis introduced in Poland are way beyond the regular ones, such as alockdown imposed and controlled by the police, social distancing, gatherings of morethan two people forbidden with the exception of families, closed borders, closedschools and universities. These infringements on fundamental rights are most likelyjustified, of course, but they call for a special modus operandi for the government— the state of emergency. Instead, the Minister of Health, #ukasz Szumowski onlydeclared a state of epidemic risk, even though the introduced measures fulfil all thecharacteristics of the state of emergency. According to the Constitution, a state of emergency would mean that the upcomingpresidential elections had to be postponed. The Constitution requires in a state ofemergency elections cannot be held earlier than 90 days after the formal ending ofthat state (Art. 228 (7)). Wojciech Sadurski proved how this unfair conditions workin favour the current president, since other candidates cannot run their campaigns(which already should make the government wary of future protests after holdingelections). As a recent poll shows, the incumbent Andrzej Duda could even winin the first round — though with a voting turnout of merely 31% (the turnout doesnot affect the validity of the elections). Moreover, as Micha# Zió#kowski alreadyexplained, not declaring a state of emergency gives PiS a lot of different possibilities,such as having the PiS-controlled special chamber in the Supreme Court declaringthe election valid, or the moral victory of an ultimate postponement of the election.Taking into account possible and very probable grave economic consequences, PiSis trying to make the most of its power before the economic and social crisis wavehits (sadly, problems of this kind already happen in the south of Italy).An online ParliamentThough some people believe that elections on the 10 May are inconceivable andPoland should focus on managing the economic crisis instead, the amendments- 1 -introduced during the night of the 27th of March prove the contrary. The context forthis: During the sitting of the Sejm on Thursday, MPs were already physically dividedinto several rooms in the building. The Sejm, with a simple majority, changed itsStanding Orders to allow online voting.  Though formally the Constitution does not exclude parliamentary proceedings online,it does state explicitly that Sejm debates on sittings (Article 109) with MPs presentto meet the quorum (Article 120). This issue already raised some controversiesamong constitutionalists, however, PiS together with Lewica (the Left) and PSL-KUKIZ’15 (coalition Peasant Party) managed to pass a rule allowing online voting(250 MPs voted for the change). It is worth mentioning that during the ordinarysession the biggest opposition party called for an amendment excluding changes tothe Constitution, the electoral code and the state of emergencies statues from thematters discussed online, but it, unfortunately, failed. Though some initial technicaland more substantial problems (Mr Rafa# Trzaskowski, current mayor of Warsaw,obtained login and password for the session, despite not being an MP since 2018;there were significant problems with maintaining confidentiality of MPs’ data),Parliament was transferred to the online platforms and proceeded with bills aimed atmanaging the crisis situation. Utmost unconstitutionality Which takes us to the gravest controversy of the described sitting. Among the manyamendments proceeded during the night, at 2 AM a new proposition appearedin the bill on the Anti-crisis Shield (reminding of the  notorious proceedings onConstitutional Tribunal ‘midnight judges’). The PiS representatives introducedan amendment of the electoral code that enables postal voting for people over60 and in mandatory quarantine and isolation. The amendment took the MPs asmoral hostages, since it was made a part of the whole bill on systemic financialhelp. MPs faced a choice: either accept the Anti-crisis shield bill altogether withthe amendment, or reject the entire project. Therefore, the PiS party voted for it,together with the biggest opposition party, Civic Coalition (KO), willing to protect theentrepreneurs. Now, the bill waits to be discussed in the upper house, the Senate,on its next sitting on Tuesday. This amendment is wrong on many levels. First of all, it clearly proves that PiSbadly wants the elections to be held on the 10 May, even though Minister of HealthSzumowski recommends a more cautious approach. Second, from a proceduralpoint of view, the amendment has not been discussed in the special parliamentarycommission nor has been debated on three sittings of Sejm. The bill has been dealtwith by urgent procedure, which is not permitted for amending codes. What is evenmore important, there are no connections between the proposed amendmentsand the financial measures in the bill, which violates the constitutional principle ofopen legislative initiative (as decided by the Constitutional Tribunal in the case K11/02). Moreover, significant changes in the electoral code cannot be introduced sixmonths before the date of elections, according to the CT which had declared that aconstitutional principle (K 31/06, confirmed in K 9/11). Extending the catalogue ofpersons enabled to postal voting is such significant change. - 2 -Until two years ago, the catalogue for people were entitled to postal voting wasindeed wider, including Polish citizens abroad, until PiS decided to withdraw thispossibility. AsPiS MP Macin Hora#a explained the reasons for this: “In case of postalvoting, we do not know what happens with the voting paper. There is no certaintythat the voting happened in conditions of confidentiality, without any pressure northat the entitled person voted”. It is striking that during the emergency conditions PiSdecided to introduce once again postal voting. As the former constitutional judge andchairman of the electoral commission, Mr Wojciech Hermeli#ski stated: “when aninstitution is redundant, we throw it away, but when it is necessary for achieving ourgoal, then it is implemented”. This bill, apart from disabled persons, allows two further categories of citizens tovote by mail: (1) those in imposed quarantine or isolation; and (2) senior citizensover 60. This risks to infringe the electoral rights of these persons significantly. Forthe first category of voters, the requirement of postal voting should be signalled nolonger than 5 days before the elections — but what if one happens to be quarantined3 days before? Moreover, the age limit is an unconstitutional discrimination —why over 60, and not any other age? Person at any age with pre-existing healthconditions are endangered, too. It also does not foresee any protective measuresfor those delivering the voting papers or sitting in commissions. Last but not least,the amendment does not even mention people living abroad — what if authoritiesin countries that were affected most by coronavirus, like Italy, will not uphold all themeasures until 10 May? Their fair access to the ballot box will not be guaranteed atall. The amendment undermines the hard work of Ministers and MPs working hard tomanage the outbreak, like Minister of Health Szumowski. Instead of the governmentand the opposition parties cooperating in face of the crisis, once again Polishpolitical community is served with a mere political conflict. Could it be that it is justKaczy#ski’s will to test the limits of what the Polish public is prepared to endure? Ifthe Senate rejects the amendment (unlikely, as the amendment is part of the crisisbill), will the PiS withdraw it? Or shall we prepare for the least legitimate electionsin the post-communist Polish history? There are already calls for a boycott of theelection on 10 May, though that might also be the outcome desired by Kaczy#ski: theless people go to the ballot box, the higher the chances of Duda’s victory. The stateis being further privatised by one radical fraction of the PiS party even in the horribleconditions of pandemia. - 3 -

Preparing for the Pandemic Elections

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Preparing for the Pandemic Elections

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