Former CT judge Prof. Wyrzykowski: The presidential elections in Poland will be held under the pretence of legality
This is not the first time that we have escaped from the bounds of the Constitution simply to avoid implementing functions of the state that have been established by the nation - warns prof. Mirosław Wyrzykowski
Professor Mirosław Wyrzykowski is a professor and former dean of the Faculty of Law & Administration at the University of Warsaw, former chairman of the Legal Sciences Committee of the Polish Academy of Sciences (2011-2015), and a former judge on the Constitutional Tribunal (CT) (2001-2010).
Anna Wójcik: The speaker of the Sejm, Elżbieta Witek, has announced that the presidential elections in Poland will be held on 28 June. Constitutionalists have warned that these elections will not be held in accordance with the Constitution, and therefore whoever wins will have very poor legitimacy. What should citizens who believe in the Constitution do in this situation?
Professor Mirosław Wyrzykowski: The most serious shortcoming of these elections is that they do not comply with the Constitution. The citizens have been caught in a trap. They are faced with a choice between participating in the electoral act, which from the very beginning was unconstitutional—and remains so—and taking actions which could be interpreted as saving what’s left of the democratic order.
Getting out of such a trap is extremely difficult. We’re faced with an alternative: either taking part in elections which are burdened with obvious unconstitutionality, or refusing to participate in the next stage of the destruction of the constitutional order. Everyone has to decide upon this issue for themselves—how they understand citizenship, and how they take responsibility for acts of commission or omission. Each voter must also decide what values he will be guided by when he makes that decision. Each of these two decisions will have its own serious justification. But these justifications will have their roots in different orders, the constitutional and the political.
However, the Senate did try to move the electoral process closer to the constitutional requirements.
They were supposed to be repairing a bad law. The amendments were adopted by the vast majority of the Senate. It might seem naïve that, despite the experiences of the last five years, the fact that PiS senators voted for the amendments indicated that a compromise had been reached, that the promise would be kept, and that the law would take on a form which had been determined by these rational amendments.
However, this naivety was ridiculed by the majority of the Sejm, as it rejected each of the three most important amendments. Each amendment had its justification, but some of them were decisive in assessing the level of democracy and the universality of the elections. In legal arguments, there is a rule that you don’t count the arguments, you weigh them. And this meant that the three rejected Senate amendments weigh much more heavily on the scales of democratic elections than the adopted amendments.
This meant that there are no conditions whereby the planned presidential election can be considered as meeting the constitutional requirements—those specified in Article 127 of the Constitution, stating that presidential elections are universal, equal, direct, and are held by secret ballot.
Moreover, has the government also violated the Constitution by failing to introduce a state of natural disaster?
There are three permanent elements in play in the Constitution. First of all, civil rights and freedoms; secondly, the structure and operating mechanism of the state organs, i.e. the machinery of state; and third, states of emergency.
Let me remind you, as we have repeated many times over recent months, that the Constitution has provisions regulating the introduction of a state of emergency during a period of natural disaster. In fact, this state has been ordered by the provisions of the law concerning the epidemic as well as by a series of extraordinary or special acts, mainly by means of official ordinances.
This is not the first time that we have escaped from the bounds of the Constitution simply to avoid implementing functions of the state that have been established by the nation.
Let us remember that the Constitution is the work of a nation. It was adopted in a constitutional referendum. The nation has thus defined those situations in which, due to the circumstances, a back-up mechanism can and should be used, namely one of the various states of emergency.
In the discussion about postponing the date of the presidential elections, reference was also made to Article 131 of the Constitution, which states that when the president cannot perform his duties, they are taken over by the Marshal of the Sejm. Wouldn’t this be an acceptable solution, allowing for a vote to be held after the end of Andrzej Duda’s term of office when the epidemic has stopped?
In the discussion about postponing the election dates, some constitutional stopgaps were sought. And we had a clear constitutional situation: due to the epidemic, it was necessary to introduce a state of natural disaster. Failure to introduce this state is a kind of abandonment of the Constitution, which has become an element of the unconstitutionality of the entire electoral mechanism.
Other imperfections also highlight the electoral mechanism’s unconstitutional defectiveness. We remember that the Electoral Code was changed less than six months before the election. This constitutes a constitutional tort, as defined in 2011 in one of the more important constitutional judgements issued by the Constitutional Tribunal.
Thirdly, the Constitution clearly states at what time elections may be called.
Further, the procedure for adopting the electoral code set out in the Constitution and the Sejm’s Rules of Procedure, including the amendments, was grossly violated. Given these shortcomings, it is impossible to defend the constitutionality of the elections to be held in June.
These elections concern the most important political right. If there are so many justified, well-grounded reservations about the electoral process, it means that the citizens have been deprived of their basic political rights in accordance with the Polish Constitution, namely the conduct and results of the presidential election in 2020.
We have to call things by their name: the politicians have decided to resolve the matter in a way which is obviously constitutionally flawed. They have done so in the name of saving the flawed electoral process. The problem is that this political compromise, albeit with some approval from a tired and discouraged public, will not have constitutional status.
The only solution to the existing constitutional crisis, in accordance with the Constitution, is to declare a state of natural disaster, and to hold the presidential elections—even though they too will be constitutionally defective—after the conditions specified in Art. 232 / in connection with Art. 228 para. 7 of the Polish Constitution have been met.
Have we ever dealt with a comparable situation of unconstitutionality in elections since 1989?
No, we haven’t encountered such a situation during the last three decades in Poland. In addition, during the quarter-century of democratic Poland, we haven’t faced the situation that has confronted us since 2015, where the Constitution has been knowingly and intentionally violated by the constitutional organs of the state.
This is an important distinction: the Constitution has not broken—the Constitution has been broken; there is an entity who has committed this act.
The entities which have violated the Constitution are the constitutional organs of the state: the President, the President of the Council of Ministers, the government, the parliament, and at the moment the Constitutional Court as well. That’s why we are dealing with a completely new situation.
Translated by Jim Todd