Analysis: Presidential election to decide the fate of judicial reform and government

All the parties represented in Parliament now have their Presidential candidates in place. The incumbent Andrzej Duda is well ahead in the polls, but the ruling party is not resting on its laurels.

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The nomination of Krzysztof Bosak MP as Presidential candidate for the radical right Confederation marks the end of the process of candidate selection in parties which are represented in Parliament. President Andrzej Duda has not officially declared that he is standing but the party which put him forward back in 2015 has already said it supports him.

The Civic Platform (PO) are fielding the deputy speaker Małgorzata Kidawa-Błońska, the Left, Robert Biedroń (MEP, gay activist, former mayor of Słupsk and founder of the Spring party), the Polish People’s Party (PSL) their leader Władysław Kosiniak-Kamysz. The only other candidate to declare is the TV celebrity and liberal Catholic activist Szymon Hołownia.

According to polling evidence President Duda is polling consistently over 40 percent of the vote and beating his main rival, Małgorzata Kidawa-Błońska by over twenty percentage points. The remaining candidates, according to most polls, are polling below ten percent of the vote.

Ruling party strategy

The ruling Law and Justice (PiS) has decided that the reason why its share of the vote in October’s Parliamentary elections was lower than expected, resulting in a narrow majority in the Sejm and the loss of its majority in the Senate, was insufficient polarisation of the electorate. The EP elections in this respect were better for the party because the opposition had united in one block and made it into a clear two horse race with both horses having a chance. This had mobilised the supporters of the ruling party.

This is why PiS have no qualms about using the issue of judicial reform, once again the focus of a dispute between Poland and the EC over the rule of law, as a key element in President Duda’s election strategy. The President has himself on numerous occasions during his frequent speeches in small towns and rural areas referred to his and the government’s determination for Poland to complete the process of judicial system reforms.

By making judicial reform a key issue, which is so hotly contested by the opposition that they even lobby against it at an international level, PiS hope to concentrate the voters’ minds around a cleavage which is potentially highly beneficial to the ruling party. Namely the cleavage between those who want to see Poland as a nation state in the EU with a right to take sovereign decisions over judicial arrangements and other walks of life and those who want to see Poland as part of a European federation in which power moves increasingly towards the executive, legislative and judicial branches of the EU as a whole.

President Duda and the ruling party will campaign on a clear ticket of continuing social, economic and legal changes which began in 2015. Changes, which both will argue, have been beneficial to the majority of the public.

The stakes are high

The ruling party and President Duda do not want to see a repeat of the “Senate surprise, when despite being the biggest party they narrowly lost control of the Senate to the opposition. The Senate can only delay legislation, so the damage is symbolic rather than real.

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But to lose the Presidency would have far more serious consequences. The President can veto legislation and PiS does not have the 60 percent of members of the Lower House that would be required to overturn that veto. Moreover, the President puts forward candidates for important state positions such as the head of the central bank (NBP) and Chief Justice of the Supreme Court. He or she also has the power to grant pardons and call (as frequently as they like) meetings of the Cabinet Council (sitting of President and his aides and the government).

It would be hard to govern with the threat of a veto hanging overhead. The Cabinet Council meetings could be made regular and public on topics the government might not wish to discuss. Those members of the judiciary who contest the current government’s reforms would have an ally in the Presidential Palace. An ally who would not grant pardons to officials or journalists facing private prosecutions.

As the city activist Jan Śpiewak found dearly to his cost, in Poland private prosecutions for defamation can lead to criminal convictions rather than just financial penalties. He was convicted of having defamed another lawyer over a restitution of property matter in Warsaw. But he may well have that conviction rescinded via a Presidential pardon from Mr Duda. With a different President he and many others would find no such safety net.

Once the Presidency was in the hands of the opposition, the government and its supporters would be on the back foot both at home and abroad. While technically the mandate of the government would remain, a defeat in the Presidential election would inevitably weaken the political credibility of that mandate, leading inevitably to a political fight over which political mandate, that of the President or the government, is more important.

Opposition slow on the uptake

Curiously, it looks like there is more of a sense of urgency in the current President’s camp than there is on the opposition side. The PO is in the middle of choosing its leader and has failed to give its candidate, Ms Kidawa-Błońska either a budget or a campaign team and she has done precious few public meetings nor launched any initiatives over the past month.

Both the Left and Confederation have made their candidate selections in the last few days, so they can hardly be said to be in full swing for the Presidential poll. Only the PSL and Mr Kosiniak-Kamysz seem to be fully up and running.

The independent candidate, Szymon Hołownia, has begun campaigning and has a team in place, but without a national organised party structure will find it hard to challenge the far better organised and resource campaigns of the Parliamentary parties. But he can certainly take votes away from those opposition parties, while there is little or no evidence that he is having any success of attracting support away from the incumbent.

What little campaigning there has been up until now has therefore been dominated by the incumbent and the ruling party. It is they who are setting the agenda and the opposition parties are simply having to react to it. It is producing exactly the kind of polarisation the ruling party was hoping for and, so far, ensuring a healthy lead for President Duda.

The incumbent is almost certain to make it into the run-off, if there will be need of one. But actually it is at the run-off stage that the opposition’s chances rise as it projects the race of being PiS versus the rest, with the rest now represented by just one candidate. However, it remains to be seen whether that representative will be strengthened or weakened by what happens in the first round and how far behind the incumbent they are.