The re-election of Polish President Andrzej Duda cements the politically toxic status quo and may serve as a catalyst for further acts of constitutional vandalism. This has implications for both Poland and the European Union, which should brace itself for a rocky yet predictable ride with the authorities in Warsaw. With the elections over now, the aftertaste is especially bitter because the process itself was legally dubious.
Implications for Poland
A cliché it may be, but Poland’s political landscape is polarised. In this respect the presidential elections have changed little, other than making the interaction between the two main parties – Prawo i Sprawiedliwość (PiS, Law and Justice) and Platforma Obywatelska (Civic Platform) – even more partisan than before. The elections have simply proved that society is split down the middle.
After a brutal campaign, Andrzej Duda won by a very slim majority of 51.03%, with Rafał Trzaskowski polling 48.97%. The incumbent president enjoyed most support in eastern Poland, particularly in rural constituencies. The results contrast starkly with those of Rafał Trzaskowski, who had major gains in western Poland and in bigger cities overall. In many respects these results are impressive, given that he joined the presidential race almost at the last minute and that – throughout his campaign – he had to contend with all manner of allegations, innuendos and attacks by PiS and the state-owned media.
The rhetoric coming from Duda’s megaphone raised eyebrows not only domestically but also around the world. Duda and his spin doctors straddled the line between patriotism and far right nationalism. His pronouncements and those of PiS politicians were tinged with homophobia and antisemitism, and may have appealed to his base but they appalled many. Duda and his camp managed to divide the electorate into ‘true’ Poles voting for him, and the ‘worst kind’ voting for Trzaskowski.
The outcome is that Duda now faces at least two challenges. First, he needs to prove that he is the president of all Polish citizens. Second, he must demonstrate his independence from the backseat driver, leader of PiS, Jarosław Kaczyński. Both tasks are daunting, not to say impossible.
As stated, Duda’s legitimacy is also undermined by the way the elections were conducted. Ever since the start of Covid-19 crisis, Kaczyński and his cronies were involved in a political dance macabre. Fearful of the economic and social implications of the pandemic, PiS initially pushed for elections on 10 May. Given the lockdown and all its restrictions, this timing was less than ideal. When push came to shove, PiS rammed changes to electoral rules through Parliament in order to organise a fully postal ballot. The new rules were signed by President Duda, even though, according to Constitutional Tribunal jurisprudence, the regulations governing elections could not be amended less than six months before the elections.
Notwithstanding, PiS belatedly realised that the state apparatus was not ready for an exercise of such gargantuan proportions at short notice. Consequentially, in the midst of self-made chaos, Kaczyński – together with the leader of his coalition partner – took the decision to postpone the elections. An attempt to translate that political act into a formal decision, staged by two ordinary members of the Sejm (lower chamber), failed to hold water, however.
All these shenanigans could have been avoided if Kaczyński had ordered the relevant state authorities to declare a state of natural disaster, which would have permitted the lawful postponement of elections, at least until the autumn. But the economic fallout of the pandemic would most probably have undermined Duda’s chances of re-election. Eventually, the elections were scheduled for 28 June, with a possible second round between the two highest-scoring candidates on 12 July.
Once again, the electoral rules were swiftly changed by the Parliament. The State Electoral Commission was put back in charge and the legislation offered two alternative ways of voting. First, voters were allowed to cast their ballots at polling stations. Second, a postal ballot was introduced for some voters, in particular the Polish diaspora around the world. This arrangement was also constitutionally vague. Each ballot was accompanied by a declaration stating the personal details of the voter. Even though the declaration was in a separate envelope it had to be posted together with the ballot paper. It is hard to marry this practice with ballot secrecy, which is guaranteed by the Polish Constitution. At the same time, many practical obstacles were experienced by those who voted by post. Some ballot papers arrived late, thus not allowing people to vote in time, others were invalidated by bureaucratic ‘error’ (such as not being stamped).
Overall, it is doubtful that the elections met the constitutional test of equality. Duda’s campaign was propped up by the government, whose members toured the country and attended political rallies. Additional thrust was given by the partisan public media, financed from the state budget. This was even criticised by an OSCE-ODIHR election observation mission. Legal challenges to the way in which the elections were organised, based on the grounds listed above and many others, are now pending. However, with the Supreme Court under siege, the result is hard to predict.
The question is, what comes next? Judging by early comments from PiS and its elites, a further onslaught on the judiciary, followed by a dismantling of independent media, is on the cards. To add fuel to the fire, PiS and the media it controls are trying to portray Duda as the victim of a brutal campaign against him. This is unlikely to create a platform for honest political dialogue with the opposition that Duda himself has called for. And indeed poses a challenge for the European Union.
Implications for the EU
It is no secret that the EU and its institutions have struggled to handle the rule of law crises brewing in its unruly ‘teenage’ member states in recent years. Proceedings under Article 7 TEU have reached a dead end. Any new rule of law mechanisms based on dialogue are unlikely to be fit for purpose as they presuppose the presence of a ‘gentleman’ at the other end. The trouble with Poland is exacerbated by the fact that the EU is talking to people who hold office, but not power. Furthermore, as recent history has shown, talking to populists is an unenviable task because it means trading arguments with slogans. With the Soviet-style propaganda coming from Poland’s state-owned media, it is mission impossible.
The EU has also had recourse to legal tools, in particular the infringement proceedings. But one needs to remember that the authority of the Court of Justice has recently been undermined by the German Constitutional Court’s judgment on the bonds purchasing programme. This has been seized upon by Warsaw and feeds anti-EU rhetoric.
Nevertheless, the European Commission should not give up the fight. Au contraire, in future it should act more often and much faster than thus far. This might put more pressure on the authorities in Warsaw and place their dubious activities under the spotlight. Furthermore, linking EU funding to rule of law compliance is a must. The recent proposals put forward by Charles Michel, President of the European Council, are a step in this direction.
The main challenge, however, is as follows. If Kaczyński and his party feel free to act in breach of the Polish Constitution, to dismantle the Constitutional Tribunal and independent judiciary and ram laws through Parliament in violation of law-making procedures, why would they feel the need to comply with EU law?
Perhaps the time has come for more political action along the lines of the boycott of Austrian representatives in 2000, when the right-wing party of Jörg Haider joined Austria’s government. It may face opposition from the usual suspects, Hungary’s Viktor Orbán in particular. But, if all else fails, it is worth the other EU member states giving it a try.
One thing is clear. The problem will not go away soon. Unless something extraordinary happens, the next parliamentary elections in Poland are three years away. A lot can change before then; the political sands may shift with the possible political retirement of Kaczyński; there are new cohorts of voters that became active during the campaign; and there is the solid political capital on which Trzaskowski can build. That said, untold damage could still be done before the end of the legislative cycle.