But the manner in which that agreement was reached and the way it was executed constitute “a massive violation of the foundations of the democratic order”, according to Piotr Buras, head of the Warsaw office of the European Council on Foreign Relations think tank.

“What happened with this agreement is truly unprecedented: the presidential election in Poland was not postponed, it was just cancelled,” Buras told BIRN in an interview. “Simply put, in a democratic country, the government decided — consciously — not to organise the election of the head of state.”

Simply put, in a democratic country, the government decided — consciously — not to organise the election of the head of state.

– Piotr Buras, political analyst

Last Wednesday, with preparations underway for a postal vote on May 10, PiS leader Jaroslaw Kaczynski announced the poll would not take place after all due to the deal with Porozumienie leader Jaroslaw Gowin, who had objected to holding the vote in mid-pandemic. 

Under the agreement between the two leaders, the vote on Sunday would not be officially cancelled but would also not de facto take place. 

According to the text of the deal released on Wednesday, this would force the country’s Supreme Court to invalidate the election and a new date would be set, most likely in the summer. 

Gowin’s 18 lawmakers from Porozumienie duly voted with PiS on Thursday to pass a draft law that would allow postal voting for the presidential poll (under the deal, any summer vote would also happen by postal vote). 

By the weekend, however, Kaczynski was already considering reneging on the deal, Polish media reported.

With the law on postal voting now passed, PiS had all the legal tools it needed to organise the vote later in May rather than later in the year, as Gowin wanted. It had earlier sent a request to the PiS-subservient Constitutional Tribunal to validate a May vote.

An election sooner rather than later is in the interests of PiS’s candidate, incumbent President Andrzej Duda. Polls show Duda as the likely first-round winner of any election held in May — before the full effects of the coronavirus crisis are felt on the economy.

According to local media reports, the possibility of PiS pulling out of the deal was the subject of fierce debate at PiS headquarters on Saturday, where Gowin, Prime Minister Mateusz Morawiecki and other government members were present.

Influenced by Duda’s electoral team and other allies, Kaczynski wanted to see if he could push for a vote on May 23.

Some media reported that Morawiecki — who is said to be against a vote in May — offered his resignation during the meeting in protest. PiS leader Kaczynski did not accept it (though legally it is not up to Kaczynski, a mere backbencher, to decide who is or is not prime minister).

What is more, some commentators have suggested that members of a conservative faction in PiS — including Justice Minister Zbigniew Ziobro — triggered the Saturday talks in an attempt to blow up the deal with Gowin as a means of forcing a government collapse. This would enable Ziobro to get rid of his rival, Morawiecki. 

In the end, Saturday passed without an announcement of the Wednesday deal being dropped and the non-vote went ahead, with polling stations closed.

“If it’s impossible to organise elections because of the pandemic, this is a reason to declare a state of natural disaster, an instrument provided by the constitution,” Buras said. “But the government decided not to use the constitutional solution. Rather, it decided to simply not have the elections in the expectation that this would lead the Supreme Court to declare them invalid.

“Constitutionally, legally, this is very tricky. Because how can the Supreme Court declare the election invalid if it has not even taken place? Expecting that the court would follow this reasoning is a bit risky.”

People protest in the center of Warsaw on 7 May 2020. The protest was organised by Pawel Tanajno, one of the presidential candidates. Photo: EPA-EFE/RADEK PIETRUSZKA

While many observers raised their eyebrows at the confidence with which the Kaczynski-Gowin agreement anticipated a Supreme Court decision, Buras said Kaczynski was likely betting on the fact that his party had achieved sufficient control over the judicial body to guarantee the outcome. 

In late April, Supreme Court First President Malgorzata Gersdorf, a staunch critic of controversial PiS justice reforms, retired without organising an election for her replacement.

While Gersdorf blamed the coronavirus crisis for not organising the election, even her allies said she was waving a white flag too soon against reforms that she and many other critics say amount to a takeover of the judiciary by the government. 

In the absence of a replacement, President Duda was able to appoint an interim First President of the Supreme Court, Kamil Zaradkiewicz, who is now tasked with organising the election of Gersdorf’s successor. 

“The interim president of the Supreme Court is extremely close to PiS,” Buras said. “If Duda picked him, this shows that PiS really wants to turn the Supreme Court into something similar to the Constitutional Tribunal — a completely dependent body.

“There is no way to prevent someone close to PiS being chosen as the next First President of the Supreme Court. The way the election is structured, there is just no way. 

“Plus, even if there are still independent judges in the court, Duda has the ability to ensure the majority of judges follow the PiS party line: the Polish president has the right to expand the number of judges in the Supreme Court by as many as he wants and then he picks from candidates nominated by the (PiS-controlled) National Council of the Judiciary.”

If Duda picked him, this shows that PiS really wants to turn the Supreme Court into something similar to the Constitutional Tribunal — a completely dependent body.

– Buras

In April, the European Court of Justice issued an interim ruling asking Poland to dissolve a disciplinary body of the Supreme Court whose members were nominated by the politicised National Council of the Judiciary (KRS). But Poland on Friday missed the deadline to take steps to do so, meaning it is likely to ignore the ECJ ruling.

A second Supreme Court body recently created as part of PiS’s judicial reforms is in charge of ruling on the propriety of elections. Its members are also nominated by the KRS. 

With PiS close to controlling all key institutions in the judicial system, opposition parties are desperate to keep the party from further cementing its grip on power with a second presidential term for Duda.

While holding the presidential poll in the summer would increase the opposition’s chances of beating Duda, experts say the odds are still against them.

Buras noted that restrictions on public gatherings are likely to remain in place in the coming weeks, making campaigning difficult. Meanwhile, opposition candidates have spent their war chests in preparing for the May 10 vote that never happened.

And importantly, there is no clear frontrunner among the opposition candidates whom anti-PiS voters can rally behind. 

“Polling data suggests that several opposition candidates can realistically hope to come second and, if there is a second round of elections, they even have a chance of winning against Duda,” Buras said, citing an April poll commissioned by his organisation.

“If there was one strong candidate, there would be pressure on the weaker ones to withdraw, but not like this.”

The elections would also have to be organised properly — and that is by no means guaranteed within the two months before the expected election, Buras warned. 

In addition to raising alarm bells about the state of democracy, Poland’s political crisis highlights the erosion of the governing alliance, Buras said. Experts say Kaczynski’s increasing vulnerability may be driving him to make chaotic choices and ever more blatant violations of legal standards. 

“At the end of the day, this is the end of Kaczynski’s supremacy,” Buras said. “He’s weakened. There’s no trust left between Kaczynski and Gowin, despite the PR around the agreement, and this governing coalition will not restore its stability.

“Hard economic times are coming and PiS will suffer from it. Gowin is trying to exploit the situation and present himself as the potential successor to Kaczynski, as someone who can integrate different political movements and organise the political scene around him.”

Buras concluded: “There is no stability any more.”