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National Electoral Commission. 150 days after the election? Immediately? When is the president to appoint new members?

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Marshal of the Sejm Szymon Hołownia criticizes President Andrzej Duda for still not appointing new members of the National Electoral Commission. The president’s representatives respond that he will meet the deadlines. How long does he have and does it affect the organization of local government elections? We explain.

The local elections will be held on April 7 (first round) and April 21 (second round). This is what Prime Minister Donald Tusk announced, which was confirmed by… regulation of January 29 – because it is the Prime Minister who orders local elections. Even before the official announcement of the dates, lawyer Ryszard Kalisz (in the past, a member of parliament for four terms), elected by the new Sejm to the National Electoral Commission (PKW), complained that President Andrzej Duda was not appointing new members of the commission. “In December, I was elected to the National Electoral Commission. And I am still not in it, because in order to be in the National Electoral Commission, the president should invite these seven people and take the oath from us,” he said. January 23 in “Kropka nad i” on TVN24. “There has been no invitation so far. Therefore, the National Electoral Commission has the old composition, mainly PiS,” added Ryszard Kalisz.

Piotr Ćwik, deputy head of the president’s office, was asked about this issue. “Please be sure that the president will do it within the deadlines that oblige him to do so,” he said on January 25 in Program I of Polish Radio. “The president’s calendar is constructed in such a way as to fulfill all the president’s duties resulting from appointments and nominations,” he emphasized.

On the same day, the Speaker of the Sejm, Szymon Hołownia, said at a press conference that he was still waiting for the president’s response to his letter regarding the appointment of members of the National Electoral Commission. “There will be local elections soon and we may have a situation where one National Electoral Commission and one National Electoral Office will start the elections, and the other one will end them. This is a recipe for such a mess that we have never dreamed of in Poland, because so far these the elections, thank God, went smoothly,” said the marshal.

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Are there any deadlines that oblige the president to appoint members of the National Electoral Commission? As it turns out, even lawyers have different opinions on this subject.

How is the National Electoral Commission created?

Amendment to the Electoral Code of January 11, 2018 caused a departure from the so-called the judicial model of the National Electoral Commission. Until then, the commission consisted only of judges. After the amendment, the National Electoral Commission consists of nine people: – one judge appointed by the president of the Constitutional Tribunal; – one judge appointed by the president of the Supreme Administrative Court (their terms of office last nine years – i.e. until January 2029); – seven persons qualified to hold the position of judge (Article 157, paragraph 2, point 3), who are not members of political parties, designated by the Sejm, with a term of office equal to the term of office of the Sejm; in accordance with art. 157 pairs 4a “the number of these members must proportionally reflect the representation of parliamentary or deputies’ clubs in the Sejm” (bold from the editors).

In the composition of the National Electoral Commission, selected by the previous Sejm on December 20, 2019, three people are recommended by PiS, two – by KO, and one by recommendation of PSL and the Left. The person recommended by the Left became an official of the Ministry of Family, Labor and Social Policy in December 2023 – so there are now eight people in the National Electoral Commission (two judges and six members representing the Sejm).

On December 21, 2023, the New Sejm appointed two people to the National Electoral Commission recommended by KO and PiS, and one each by the Polish 2050, PSL and Left clubs. This squad – as reported on January 24 “Dziennik Gazeta Prawna” – President Andrzej Duda questions. “His colleagues raise doubts whether PiS, as the most numerous club in the Sejm, should have the same number of NEC members as the KO club, which is several dozen fewer in number. As we have established, the Presidential Palace sent a letter on this matter to the Speaker of the Sejm, Szymon Hołownia, in which he demands explanations,” the newspaper wrote. The difference between the PiS club and KO is 32 MPs (not including Mariusz Kamiński and Maciej Wąsik, who were deprived of their mandate; more about them in later in the text).

In turn, former chairman of the National Electoral Commission Wojciech Hermeliński wrote on January 30 in “Republic of Poland“: “The President cannot fail to approve the candidates presented to him, much less demand any corrections in the composition indicated to him.” The President may dismiss someone from the National Electoral Commission, but only at the request of the body that appointed the person to the committee – i.e. the Sejm, the president of the Constitutional Tribunal or the president of the Supreme Administrative Court. There is no provision allowing the president to appoint “his” member of the National Electoral Commission.

After 150 days from the election or immediately? Experts divided

So the movement is on the side of President Andrzej Duda. This is what Art. refers to. 157 pairs 3 of the Electoral Code:

The members of the National Electoral Commission are appointed by the President of the Republic of Poland by way of a resolution.

This short sentence would indicate that the president is not obliged by any deadline to appoint members of the National Electoral Commission. The president is also not required to take the oath from the members of the National Electoral Commission – as Ryszard Kalisz said.

However – what is important in the current discussion – Art. 158 pairs 1a of the Electoral Code states:

Membership of persons appointed pursuant to Art. 157 pairs 2 point 3 expires by operation of law after 150 days from the date of elections to the Sejm.

According to this provision, the membership of seven “old” members of the National Electoral Commission (appointed in 2019) expires on March 13, 2024. What does this mean in relation to the seven new members of the National Electoral Commission waiting to be appointed?

Constitutional scholar Dr. Mateusz Radajewski from the Faculty of Law and Social Communication of SWPS University in Wrocław explains in an opinion for Konkret24: “The President should appoint new members of the National Electoral Commission immediately, but only after the mandates of the current members of the National Electoral Commission expire, which will take place in mid-March.” He further writes: “The President cannot currently appoint new members of the National Electoral Commission – the act clearly states that the existing members continue to perform their functions for 150 days from the election day. Only when their term of office expires, the President should immediately appoint the persons indicated by the Sejm.” . According to Dr. Radajewski, there are no grounds to shorten this 150-day period by selecting new members earlier.

This provision is interpreted similarly by the current chairman of the National Electoral Commission, Judge Sylwester Marciniak. “The membership of existing members expires by operation of law 150 days from the election date. Not ‘within 150 days at the latest,’ but exactly after 150 days, i.e. on March 13. Therefore, the seven persons designated by the Sejm may be appointed only on March 14,” he said. in an interview on January 30 for “Dziennik Gazeta Prawna“.

However, Dr. Joanna Juchniewicz, a constitutionalist from the Faculty of Law and Administration of the University of Warmia and Mazury in Olsztyn, has a different opinion. He believes that Art. 158 pairs 1a of the Electoral Code “constitutes a safety valve against, for example, obstruction of the Sejm, which does not make an election in order to keep the old composition of the National Electoral Commission.” According to her, the president should appoint new members of the National Electoral Commission immediately after the election. Firstly, because – as Dr. Juchniewicz writes in an opinion for Konkret24 – “that in accordance with Article 126(1) of the Constitution, the president is the guarantor of the continuity of state power, therefore his actions should be part of the implementation of this function.” “In other words, the president should take care and ensure that the authorities operate uninterrupted. This will require him, when necessary, to start the procedure of selecting specific people for specific positions, and appointing those selected by another authority, if such competence has been assigned to the president.” – says the constitutionalist. The second reason why, in her opinion, the president should not delay appointing seven members of the National Electoral Commission is the upcoming elections. “Since we are facing local government elections (and they are the most difficult organizationally), the sooner the President appoints the members of the National Electoral Commission, the better the efficiency of the organization of this process. To conclude: the president should appoint the members of the National Electoral Commission selected by the Sejm as soon as possible,” says Dr. Juchniewicz.

Also, the former chairman of the National Electoral Commission, Judge Wojciech Hermeliński – as he wrote for “Rzeczpospolita” – sees no reasons “for further delay in the president’s appointment of the National Electoral Commission members referred to in Article 157, paragraph 2, point 3 of the Electoral Code.” These divergent opinions, even among experts, show that this can be an area used in political games.

However, according to lawyers, there are no legal obstacles to “one commission starting the elections and another ending them.” “The elections are organized by a state body, not its specific composition. From the legal point of view, what is important is only that the National Electoral Commission maintains institutional continuity, not necessarily personal continuity,” says Dr. Radajewski. Although, as Dr. Juchniewicz warns, if “hypothetically, during the electoral process for local government units, the entire composition of the National Electoral Commission was changed, there may be a risk of organizational chaos.”

National Election Commission and the mandates of Kamiński and Wąsik

The National Electoral Commission decides not only on the elections, but also on parliamentary mandates – which, according to PiS, is important for the fate of Mariusz Kamiński and Maciej Wąsik. Because, according to the Speaker of the Sejm and legal experts, the mandates of both PiS politicians expired after the final court judgment of December 20, 2023. Even the president’s pardon, which took place on January 23, does not change this situation.

READ MORE IN KONKRET24: Kamiński and Wąsik were pardoned. What can they do as citizens?

In December, the Speaker of the Sejm, Szymon Hołownia, issued decisions to expire the mandates of both politicians. Kamiński’s appeal was handled by both the unrecognized Chamber of Extraordinary Control and Public Affairs of the Supreme Court and the Chamber of Labor and Social Insurance. These chambers issued contradictory judgments. On January 10, “Monitor Polski” published the Marshal’s decision regarding the expiry of Mariusz Kamiński’s mandate. Only the Audit Chamber ruled on Maciej Wąsik’s appeal – taking it into account. The Chamber of Labor stated that it would no longer consider the appeal. The decision to terminate Maciej Wąsik’s mandate has not been published.

PKW in accordance with Art. 251 of the Electoral Code should notify the Marshal of the Sejm which next person on the electoral list should take over the mandate after both convicted persons. The National Electoral Commission will adopt a resolution on this matter by a majority of votes. As the chairman of the National Electoral Commission, Judge Marciniak, said in an interview for “DGP”, since the decision of the Speaker of the Sejm to terminate the mandate of Mariusz Kamiński was published in “Monitor Polski”, he will vote “for indicating further candidates from the list who can take over the mandate after Kamiński”. This would give as the newspaper writesa majority in the National Electoral Commission, which would allow the Speaker of the Sejm to start the procedure of supplementing the composition of the Sejm.

However, if the next people on the list do not decide to take over the mandate from Mariusz Kamiński, this is an option application of art. 251 pairs 6 of the Electoral Code, which reads: “If filling the mandate of a Member of Parliament in the manner specified in paragraphs 1-3 would be impossible due to the lack of candidates to whom the mandate can be assigned, the Marshal of the Sejm, by way of a resolution, declares that the mandate remains vacant until the end of the term of office.” This means that the law provides for the possibility of the parliament operating in a reduced composition. And even until the end of the term.

Main photo source: RITZAU SCANPIX



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