A group of MPs, represented by Paweł Jabłoński (PiS), has asked the Constitutional Tribunal to examine the constitutionality of “anti-COVID” provisions in the context of the Prime Minister’s orders related to the preparation of the post-elections.
“Anti-Covid” provisions in the context of the elections to the Constitutional Court
In the background of this case is the decision of then Prime Minister Mateusz Morawiecki of April 16, 2020, which instructed Poczta Polska to take action to counter Covid-19, consisting of undertaking and carrying out activities necessary to prepare for the general elections for the President of the Republic of Poland in 2020 by correspondence.
In a situation where the election date was fixed and the actual circumstances, i.e. the global Covid-19 pandemic, made it impossible to hold elections in a traditional manner, without endangering the lives and health of citizens participating in the vote , orders were issued that In the light of dynamic legislative changes in the legislation, the electoral process – for example expanding the group of people who have the right to vote by post to people over 60 years of age – in preparation for the conduct of elections leads directly to the possibility of implementing the voting rights of citizens
– emphasized the applicants.
The application, which was submitted to the Constitutional Court on December 8 this year, has recently been given a reference number and registered. This concerns a provision from the ‘anti-COVID’ laws of 2020, subsequently amended many times.
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 the economy, may issue orders in connection with the fight against Covid-19 that apply on other (…) legal entities and organizational units without legal personality and entrepreneurs.
“Orders are given by way of administrative decision, are subject to immediate execution upon delivery or announcement and do not require any justification.
– added in this recipe.
The filing questioned the interpretation of this provision as it did not refer to “orders issued in connection with the preparation of elections in an epidemic state.”
These are organizational, material and technical activities related to the holding of elections using the technique of postal voting, but which are not reserved to the powers of other entities, such as instructing the entity that is the designated operator to to prepare an organizational structure, to provide the necessary infrastructure and the necessary material and human resources and to instruct the entrepreneur to produce election packages
– indicated.
In the opinion of the parliamentarians who formulated the motion, in the situation of a global pandemic, “it limits the scope of application of this provision, eliminating the possibility of cooperation aimed at achieving the constitutional goal – keeping elections within the constitutional term, in full respect of the principle of term of office of state bodies and safeguarding the constitutional rights of individuals, being electoral rights (passive and active), taking into account the requirements of protecting public health and minimizing of the risk of transmission of a virus that poses an epidemic threat – is contrary to the principle of cooperation between authorities deriving from the preamble of the Constitution.
According to the applicants, public authorities, including the Prime Minister, were obliged to “take 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 from occurring with the SARS-CoV-2 virus that causes the Covid-19 disease.”
It is true that the original provision that is the subject of the appeal is no longer formally in force, but – as indicated in the petition – since decisions in legal transactions are given on the basis of the legal standard indicated in the petition and it can be challenged , even despite the value of finality, then the standard resulting from the repealed provision is still valid in the substantive legal sense, since there are factual situations in which it will apply. Moreover, as the applicants have pointed out, there is still a provision with a similar content in the law, albeit in a different place. Therefore, this new provision was indicated in the proposal as “subject to a possible appeal”.
The Constitutional Court has not yet set a deadline for handling this application.
The judgment of the provincial administrative court is invalid
In September 2020, the Provincial Administrative Court in Warsaw ruled that the Prime Minister’s decision to oblige Poczta Polska to prepare the presidential elections by letter was a gross violation of 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, that is, the President, the principles of legalism must be particularly respected.
– the Provincial Administrative Court subsequently decided. This judgment remains invalid. The Supreme Court has not yet recognized the cassation appeal.
READ MORE: Head of the Prime Minister’s Chancellery: The provincial administrative court’s decision on postal elections is surprising to us. We are waiting for a written explanation
Commission of Inquiry
Meanwhile, in December this year The Sejm adopted a resolution on the creation of an investigative committee to investigate the legality of the 2020 elections for the President of the Republic of Poland in the form of postal voting; Half of them unanimously supported its creation.
A week ago, MPs chose the composition of the investigation committee. Four PiS MPs were elected to the committee: Waldemar Buda, Przemysław Czarnek, Paweł Jabłoński and Mariusz Krystian. The KO club is represented by three people: Magdalena Filiks, Dariusz Joński and Jacek Karnowski. Agnieszka Maria Kłopotek will work with PSL-TD in the committee. The Left is represented by Anita Kucharska-Dziedzic, Poland 2050-TD by Bartosz Romowicz and the Confederation by Witold Tumanowicz.
On Tuesday, the investigative committee met at 10 a.m. to elect its presidency.
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— The Sejm has decided. We know the composition of the post-election investigation committee! CHECK which MPs will deal with this issue
olnk/PAP
Source: wPolityce