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Politicized Polish judicial body illegally rubberstamps unfair presidential elections

Halya Coynash
A new low was set on 3 August 2020 for Poland’s democracy, one with ramifications for the European Union if it fails to react

A new low was set on 3 August 2020 for Poland’s democracy, one with ramifications for the European Union if it fails to react.  An illegitimately appointed chamber of the Supreme Court rejected almost all of the record six thousand electoral protests over the presidential elections held on 28 June / 12 July 2020 and declared that Andrzej Duda’s victory was valid.  Over four thousand of the protests rejected had pointed to the same flaws in the elections that were strongly criticized by OSCE election observers, such as “the biased coverage by the public broadcaster” and the fact that the Prime Minister travelled around the country “in his official capacity making campaign promises to distribute public funds while publicly handing out ceremonial cardboard cheques”.  The chamber chose to ignore the OSCE comment that this “blurred the line between state and party and created an undue advantage for the incumbent.”.  It also disregarded a critical fact, noted by the OSCE observers, namely that the National Broadcasting Council, which should have monitored and eliminated the public broadcaster’s bias, did nothing at all.   The NBC is another of the bodies that has effectively been filled by people linked to the ruling PiS party.

Presidential elections in the middle of a pandemic

The elections were due on 10 May 2020, but with the pandemic and lockdown measures in place, it was very clear that only President Duda was able to ‘campaign’, and was energetically doing so with the support of public television TVP and members of the government.  There were repeated calls for a state of natural disaster or emergency to be called, with this making it constitutionally possible to postpone the elections.  PiS (or, as is widely believed, one man – the head of PiS, Jarosław Kaczyński) insisted instead on sticking to the 10 May date and pushing through a thoroughly undemocratic election law which Duda duly signed.

The 10 May ‘election’ proved impossible to hold, but that then made the 28 June and 12 July election rounds constitutionally dubious.  All were, in any case, flawed, as it is prohibited to change the electoral law in the six months before the elections.  The chamber acknowledged this to be the case, however claimed that the situation had been exceptional, due to the pandemic.  Perhaps it was, however that was the reason that a state of disaster or emergency should have been called. 

Professor Marcin Matczak, an expert in constitutional law, commented after the decision was announced on Monday that “a constitutionally flawed Supreme Court chamber has confirmed constitutionally flawed elections.  The systematic destruction of the Constitutional Tribunal, the National Council of the Judiciary [Krajowa Rada Sądownictwa, or KRS] and the Supreme Council leads to a situation where there is nobody to say that this is not allowed”.

The right-wing PiS [Prawo I Sprawiedliwość, or Law and Justice] party effectively seized control of the Constitutional Tribunal soon after gaining an absolute majority in the Sejm elections of 2015.  It had already introduced major changes to the public TV and radio broadcasters, with these essentially turned into mouthpieces for the ruling party.  In 2017, it took over KRS, with all 15 members voted in by the PiS-controlled Sejm.  The European Network of Councils for the Judiciary reacted by suspending this ‘neo-KRS’ and is currently in the process of expelling it altogether.  All of these changes, it should be stressed, were with the cooperation of President Duda.  After attempts to totally take over the Supreme Court, and remove its independent president Professor Małogorzata Gersdorf failed, Duda created a Chamber of Extraordinary Control [Izba Kontrola Nadzwyczajna I spraw publicznych] within the Supreme Court in 2018, with this totally filled by people appointed by the politicized KRS. It was this chamber that considered the election protests, although a number of the protests had specifically asked for this chamber to be excluded.  The reasons why its members should have been excluded was spelled out in a statement on 3 August by the Justitita Society.  It considers the chamber’s ruling recognizing Duda’s re-election to be invalid, noting that the chamber was created by Duda, “through an extremely politicized nomination process”  and with people put forward by the neo-KRS despite a ban issued by the Supreme Administrative Court of Poland due to prejudicial questions awaiting consideration by the EU Court of Justice.  Any ruling by this chamber is invalid, as was confirmed by all three ‘original’ chambers of the Supreme Court on 23 January 2020.  The method used to try to bypass this Supreme Court ruling has been condemned by most legal experts, and seems certain to be dismissed by the EU Court of Justice.

While all of the constitutional arguments about the elections may be valid, it was probably to be expected that they would be rejected, if for no other reason than because all of the candidates had agreed to take part.  The arguments against the election results being declared valid by an invalid body are compelling, but only one of many reasons why very many people will continue to question the outcome of this election.

There are occasions where infringements, although acknowledged, can be deemed to have not influenced the outcome of an election.  This is not one of them.  For all the advantages and administrative resources enjoyed by President Duda, his main rival, Rafał Trzaskowski came a very close second, with a difference of less than half a million votes. 

The chamber did find 93 protests justified, but claimed that they had not influenced the vote.  It rejected 4,086 protests, all of which, it said, had referred to the biased treatment of one candidate by the public broadcaster.  Rather than actually denying the biased nature which had, after all, hit the OSCE observers, and all other monitors, in the eye, the chamber claimed that the protests had not fulfilled the formal conditions and had, therefore, been left without consideration.  It did, however, claim that “general assertions about the hypothetical behaviour of millions of voters and about their choice cannot in themselves, within the framework of a democratic law-based state be treated as a violation of the norms of the Electoral Code or a crime having an impact on the result of the elections”.

Poland’s adherence, under the PiS government and Duda’s presidency, to the rule of law has, with strong cause, been placed in question by the European Commission.  With both the public broadcaster and the body which is called upon to monitor the public broadcaster, under government control, the chamber’s position effectively leaves the voters with nobody protecting their right to fair and honest elections, in which all candidates have equal chances and the voter is able to make an informed choice.  In the above-quoted comments and others in its report, the OSCE observers made it clear that “public television failed in its legal duty to be impartial and the TVP coverage strongly favoured the incumbent” and that the National Broadcasting Council had failed to monitor this.

There is nothing ‘hypothetical’ about a situation where a very significant part of the population, which has access only to TVP and limited or no access to the Internet, receives a barrage of negative information, often highly misleading, if not downright untrue, about the main opposition candidate.  Even should they have other sources of information, the very fact that they are constantly being shown President Duda in a glowing light and that leading members of the government are travelling around, promising all kinds of post-election goodies, cannot fail to have an impact.

All of this has been seen and thoroughly monitored by journalist and human rights groups for a long time.  For details of earlier reports, see: Poland’s Government uses ‘Public TV’ as a propaganda tool to win the elections. Will the EU react?

The National Broadcasting Council ignored the concerns in 2019, and did so again in 2020.  Shortly before the first round of voting, for example, the Society of Journalists reported that TV News presented the election campaign like a war between good and evil, in which Duda always keeps his promises and acts in the interests of Poles, whereas Trzaskowski is irresponsible, not to be trusted and acts in the interests of foreigners.   

You really did not need more than an hour or so of watching, or even a brief perusal of the captions used by TVP to understand just how unfair the election coverage was. 

Nor, it should be said, was PiS even trying to conceal the uses it had made of public television.   Just three days after the second round of voting, a meeting took place in the office of the Ryszard Terlecki, deputy speaker of the Sejm and head of the Sejm PiS Club with the effective head of TVP Jacek Kurski and another top TVP leader, the Deputy Prime Minister Jacek Sasin and Andrzej Zybertowicz, adviser to President Duda. Asked by a journalist about the meeting, Terlecki said: ‘It was a meeting of political experts. It was about what we should do further in the coming weeks, years so as to again win the elections”.

PiS leaders have also lost no time in putting forward their plans for so-called ‘repolonization’ of those media which at present are not under PiS control.  Whatever words are used, the aim seems quite clear – to ensure that media like TVN24 can be either taken over, or ‘persuaded’ to mellow their hard-hitting questions and scrutiny of the party in power. 

All of this is dangerously similar to what was attempted in Ukraine and what has, to a disastrous extent, become the norm in Russia.  It is a grave threat to democracy and a path that almost half of Poland’s voters showed on 12 July that they do not support.


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