A group of MPs represented by Paweł Jabłoński (PiS) asked the Constitutional Tribunal to examine the constitutionality of “anti-COVID” provisions in connection with the orders issued by the Prime Minister. This is about preparing the presidential elections in 2020 by correspondence. The applicants acknowledge that public authorities, including the Prime Minister, had an obligation to “conduct proactive measures to limit the spread of an epidemic disease.”
This concerns the decision of April 16, 2020 of the then Prime Minister Mateusz Morawieckiwhich recommended countermeasure activities to Poczta Polska COVID-19consisting in undertaking and implementing activities necessary to prepare for the implementation elections universal candidates for the President of the Republic of Poland in 2020 by correspondence.
“In a situation where the election date has been set and the actual circumstances, i.e. the global COVID-19 pandemic, made it impossible to hold elections in a traditional manner, without risking the life and health of citizens taking part in voting, issuing orders which, in the light of dynamic legislative changes, electoral law – e.g. expanding the group of people entitled to vote by correspondence to include people over 60 years of age – are intended to prepare for the conduct of elections, leads directly to the possibility of ensuring the implementation of citizens’ electoral rights,” the applicants emphasized.
The application, which was submitted to the Constitutional Tribunal on December 8 this year, has recently received a reference number and has been registered. It concerns a provision from the “anti-COVID” laws of 2020, subsequently amended many times.
MPs asked the Constitutional Tribunal to examine the constitutionality of “anti-COVID” provisions
The provision to which the application refers states that “the Prime Minister, on his own initiative or at the request of the voivode, after informing the minister responsible for economy, may, in connection with counteracting COVID-19, issue orders binding on other (…) persons legal entities and organizational units without legal personality and entrepreneurs.
“Orders are issued by way of an administrative decision, are subject to immediate execution upon delivery or announcement, and do not require justification” – added in this provision.
The application questioned the understanding of this provision that it did not refer “to orders issued in connection with the preparation of elections in a state of epidemic.” “These are organizational, material and technical activities related to conducting elections using the postal voting technique, but not reserved for the competences of other entities, such as instructing the entity being the designated operator to prepare an organizational structure, provide the necessary infrastructure and obtain the necessary material, human and human resources issuing an order to the entrepreneur to produce electoral packages,” it was indicated.
In the opinion of the MPs who formulated the motion, in the situation of a global pandemic, “limiting the scope of application of this provision, which eliminates the possibility of cooperation aimed at achieving the constitutional goal – holding elections within the constitutional deadline, with full respect for the principle of term of office of state bodies and securing the constitutional rights of individuals, which are electoral rights (passive and active) – taking into account the requirements of public health protection and minimizing the risk of transmission of a virus causing an epidemic threat – is inconsistent with the principle of cooperation between authorities resulting from the preamble to the Constitution.
Applicants: public authorities had an obligation to “conduct proactive actions”
According to the applicants, public authorities, including the Prime Minister, were obliged to “conduct proactive measures to limit the spread of an epidemic disease.” Meanwhile, the head of government’s instructions were intended to contribute “to preventing people from gathering in larger crowds and in a small area at polling stations, which would prevent more infections with the SARS-CoV-2 virus causing COVID-19 disease.”
Although the original provision that is the subject of the appeal is formally no longer in force, however – as indicated in the application – since there are decisions in legal transactions issued on the basis of the legal norm indicated in the application and they may be challenged, even despite the value of finality, then ” the norm resulting from the repealed provision is still valid in the substantive legal sense, as there are factual situations in which it will apply. Moreover, as the applicants pointed out, a provision with similar content is still in the Act, although in a different place. Therefore, this new provision was indicated in the application as “the subject of a possible appeal”.
Constitutional Court has not yet set a deadline for examining this application.
The court ruled that the decision to vote by correspondence grossly violated the law
In September 2020, the Provincial Administrative Court in Warsaw ruled that the Prime Minister’s decision obliging Poczta Polska to prepare the presidential elections by correspondence grossly violated the law. “In the case of such an important issue as the election of the most important person in the state in terms of executive power, i.e. the president, the principles of legalism should be particularly observed,” the Provincial Administrative Court said then. This judgment remains invalid. The Supreme Administrative Court has not yet recognized the cassation appeal.
In December this year, the Sejm adopted a resolution on the appointment of an Investigative Committee to investigate the legality of the elections of the President of the Republic of Poland in 2020 in the form of postal voting; its creation was unanimously supported by MPs.
A week ago, MPs elected the composition of the investigative committee. Four were elected to the committee PiS MPs: Waldemar Buda, Przemysław Czarnek, Paweł Jabłoński, Mariusz Krystian. The KO club will be represented by three people: Magdalena Filiks, Dariusz Joński and Jacek Karnowski. Agnieszka Maria Kłopotek will work with PSL-TD on the committee. The left will be represented by Anita Kucharska-Dziedzic, Poland 2050-TD by Bartosz Romowicz, and the Confederation by Witold Tumanowicz.
On Tuesday, the investigative committee is to elect its presidium at its meeting at 10 a.m.
Main photo source: Tomasz Gzell/PAP