Poland – President Duda pushes forward with constitutional referendum idea

Earlier this month, Polish president Andrzej Duda once again pushed his idea of writing a new constitution and holding a referendum to consult the population on the most important details. Although 10 & 11 November 2018 (centenary of the declaration of the Second Polish Republic) has already been announced as a potential date and Duda has said that the referendum would include ten questions, neither the content of these questions nor his exact strategic motivation for pursuing this idea are known. Furthermore, the PiS government seems to have its own plans for constitutional reform that may clash with the president’s initiative.

President Andrzej Duda (middle) attends a sitting the Polish Senate – image via wikimedia commons

Poland has one of the more complicated recent constitutional histories in comparison with other countries. Following the roundtable negotiations in 1989, the old Communist constitution was first amended in two steps (among others by creating the office of a president and laying the foundations for the first semi-democratic elections). After the drafting of a new constitution was stalled by parliamentary fragmentation and political polarisation, politicians agreed on the so-called “Small Constitution” in 1992 that set out the relations between the major institutions, yet was far from a full-fledged constitutional document. It was only in 1997 that Poland received a full new constitution that lived up to the name. Since then, there have been no major amendments that would have substantively affected the working of the political system.

The idea of a new constitution is nothing new among politicians of the ruling Law and Justice (PiS) party to which Duda belongs as well. Already in 2005, when the party campaigned on the promise of building a “4th Republic”, a new constitution was proposed but due to the lack of a constitutional majority and fragility of the government this idea was never put into practice. Given the great number of changes to the political and legal system introduced by PiS since they returned to power in late 2015 and the fact that some of these were thwarted by their incompatibility with the current constitution, it is not surprising that this idea has been reactivated. A new constitution (or major changes) would help to both legalise and legitimise the government’s controversial reforms and take wind out of the sails of its critics. Last, both in 2005 and now, the 1997 constitution has been denounced as being the work of “post-communists”, meaning that it was drafted by the Democratic Left Alliance (SLD) as the successor to the Communist party (who PiS, having originated from the Solidarity movement, naturally oppose). Thus, it is relatively clear why PiS politicians want a new constitution. However, it is not entirely clear why the president (not the government) would push this idea. While there are several potential explanations, they are not all mutually exclusive and may only together paint the full picture.

Referenda (or the promise thereof) are a staple in the populist toolbox of political leaders in Europe and beyond. Thus, Duda may simply be preparing for his re-election campaign in early/mid-2020 and use his activism to gain greater supporter among the electorate. By promising a range of 10 questions, this approach differs from that of the government, which has hitherto introduced all changes without consulting the public and rather justified its moves ex-post. Duda may also try to save the position of the presidency within the Polish institutional structure (it has been rumoured that at least one referendum question will concern this issue). The president will be keen to keep the powers of his office, whereas the government is allegedly planning a greater concentration of power in the hands of the Prime Minister (similar to the German system) after consulting with a number constitutional lawyers and academics. Nevertheless, such plans were already mooted under the governments of Donald Tusk (2007-2014) but eventually dropped due to a lack of support among MPs and the public.

The referendum could also be a way for presidency and government to test out public attitudes towards changes without endangering the re-election of the government next year or merely. However, it is difficult to ascertain to what degree they coordinate their actions. Although it is clear that president and government generally agree on the direction of further political reforms, there have been a number of public conflicts that may or may not be genuine.

Irrespective of the fact that using the procedures of a constitution that is portrayed as illegitimate to legitimise a new document is bizarre, president Duda now has to send a request to the Senate (second chamber) and ask for the referendum to be scheduled. The speaker of the Senate and the president’s plenipotentiary for the referendum have already met several times, but it appears that more negotiations need to be completed before the actual request is made. Yet even then it is difficult to predict whether a majority of the public would support any changes to the current constitution. Although the PiS government continues to be relatively popular and the president’s plenipotentiary claims that 80% of Poles want a constitutional referendum, Poles are not particularly keen on politically motivated referenda and may simply not turn up at the ballot box. The last referendum – held on request of then president Komorowski in an attempt to thwart a second-round victory in the presidential elections by Andrzej Duda – concerned the electoral system, political party financing and tax law, but turnout was just 7.8%.

This post first appeared on presidential-power.com on 24 May 2018

Czech Republic – President Zeman and the ‘Czexit’ referendum question

This post first appeared on presidential-power.com on 12 July 2016

The result of the ‘Brexit’ referendum in the United Kingdom on 23 June has created waves across and beyond the British Isles and the European continent. As many still tried to come to terms with the UK’s (almost) inevitable withdrawal from the European Union, several representatives of populist and fringe parties across Europe already called for similar ‘exit’ referenda for their own countries. The Czech Republic is particularly interesting in this regard as it was Prime Minister Bohuslav Sobotka who was first credited with floating the possibility of a ‘Czexit’ in February this year but then publicly distanced himself from the possibility. Now, president Miloš Zeman has reignited the debate by calling for a public vote on EU (and NATO) membership of the country.

President Miloš Zeman (left) meets Martin Schulz, president of the European Parliament | © hrad.cz

President Miloš Zeman (left) meets Martin Schulz, president of the European Parliament | © 2013 by hrad.cz

The UK referendum on EU membership has given rise to many calls for a similar votes in other countries. Far-right and populist leaders and presidential hopefuls, such as Marine Le Pen, have already called for a ‘Frexit‘ referendum in France and other variations of ‘-xit’ referenda in their countries. Although the anti-EU sentiment is most strongly represented in parties of the (far) right, demand for referenda has also come from the left and ideologically less defined populist actors, most prominently from Czech president Milos Zeman.

Shortly after the results of the UK vote broke, Zeman declared that – although in favour of EU membership – he would do everything for citizens feeling otherwise ‘to express themselves’, also with regard to NATO membership (a demand already made in February 2016 but quickly forgotten). Support for EU membership and trust in the EU institutions in the Czech Republic tends to be below average in comparison to other member states, yet is far from ranking lowest in the table. In the last year, criticism of and dissatisfaction with the EU has primarily been associated with the refugee crisis and the EU’s decision to impose quotas on its member states. The populist movement ‘Dawn’ recently submitted a motion to debate the possibility of a Czexit referendum in parliament and the election of an MEP of the eurosceptic fringe Party of Free Citizens (SSO) in 2014 indicates that there is a part of the electorate that responds to anti-EU rhetoric.

Nevertheless, the Czech president does not possess any power to call referenda at will (a power reserved for only few presidents around the world) – the Czech constitution also only mentions referenda in a clause inserted to allow for the EU accession referendum in 2003 (in which case a special organic law was passed to allow for the referendum – the only one held in the Czech Republic to date). Furthermore, the government has made it clear that it opposes any public vote on EU membership. A Czexit or even a referendum on the Czech Republic leaving the European Union thus seems unlikely. Nevertheless,  EU membership (and to a lesser degree NATO) membership presents a political cleavage which could be successfully mobilised in the upcoming parliamentary and presidential elections (2017 and 2018, respectively), particularly in conjunction with the refugee crisis. After Zeman’s approval had dropped sharply a year ago due to his position in the Ukraine crisis and a series of gaffes, his ratings have since improved and stabilised once again around 57-58% over the last months. By calling for a EU referendum yet supporting membership at the same time, Zeman could thus try to dance at two weddings at once – attract Eurosceptic voters (who will probably vote for a fringe candidate in the first round but could prove decisive in a potential runoff) while not losing too many mainstream voters.

The do-over the Austrian presidential election might provide a first test of how such a tactic might work out. Far-right presidential candidate Norbert Hofer initially suggested that the Austrian people should be given a say over further EU integration and in his campaign greatly benefited from anti-EU sentiment related to the refugee crisis. Following statements by his decidely pro-EU challenger, Alexander Van der Bellen (independent/Greens), last week he was however forced to acknowledge that it would disastrous for Austria if the country left the EU. In order to maintain the momentum of his campaign and keep the anti-establishment vote, Hofer must nevertheless try to balance pro- and anti-EU voters which could – if successful – provide a template for Zeman and the Czexit referendum question.

Poland – As referendum is thwarted by low turnout, new president tries to shake up rules of the game

This post first appeared on presidential-power.com on 8 September 2015

On Sunday, 6 September, poles were called to urns the for the second time this year to vote in a referendum on three largely connected questions. The only common denominator was that the referendum itself was a remnant of the presidential campaign during which incumbent (and now ex-president) Bronislaw Komorowski – shocked by only placing second in the first round and the sizeable vote share won by anti-establishment candidate Pawel Kukiz – tried to sway voters by promising them to decide on said three questions. Just as Komorowski’s bid for re-election failed, so did the referendum as only 7.80% voters made their way to the polling stations. At the same time, Komorowski’s successor Andrzej Duda is trying to shake up the political scene in the run-up to the parliamentary elections in October which – after the president – might also remove the government of the Civic Platform from power.

Results of the Polish referendum on 6 September 2015
Question% Yes
Are you in favour of the introduction of single-member districts in elections to the Sejm?78.75
Are you in favour of maintaining the current system of state funding of political parties?17.37
Are you in favour of introducing the principle that uncertainty about the interpretation of the tax code should be resolved in favour of the taxpayer?94.51
Turnout: 7.80% (outcome invalid/not binding; threshold 50%)

In the referendum, voters were asked whether they favoured the introduction of single-member electoral districts for parliamentary elections to the Sejm, the lower and politically significant chamber of the Polish parliament (Poland currently uses preferential voting in multi-member districts; elections to the Senate are already being held SMDs). The reason for this question is the fact that one of Pawel Kukiz’ (admittedly few) campaign promises was the introduction of such a system – officially to increase accountability of deputies towards voters. The two other questions were likely aimed to pander to the general public. The public financing of political parties has long been a subject of debate in Poland. The Civic Platform – Komorowski’s former party – even did not formally register as a party for several years, thus making them unable to claim state subsidies, to demonstrate their opposition to state financing of political parties. The last question referred to the interpretation of tax law in favour of the taxpayer; however, the Sejm already passed a bill to that effect on 10th July (i.e. after the referendum was already scheduled and Komorowski lost the run-off to Duda) so that it’s only function now would have been to remind citizens of the government’s ‘good deeds’.

The low turnout which eventually rendered the outcome of the referendum invalid had been expected by many analysts and politicians. The outcome also stresses the fact that Poles – while voting for Pawel Kukiz in surprising numbers (20%, the best result of a third-placed candidate in Polish presidential elections) – did not actually want the introduction of SMDs. Kukiz political movement ‘Kukiz 15’, once predicted to win as many as 20% of votes in the upcoming parliamentary elections has recently dropped to just 6% in the polls and the results of the referendum might well have delivered its death sentence. Interestingly, the fourth-placed presidential candidate, far-right MEP Janusz Korwin-Mikke (4.40%), and his newly formed party KORWIN have also failed to gain significant support – the latter is currently predicted to receive between 2-3% of the vote. Last, fifth-placed candidate Magdalena Ogórek, rumored to aim for a safe list place rather than the presidency during the course of the campaign, has disappeared from the political scene and will not run for parliament.

While other parties might struggle to enter parliament or will at least experience significant losses, ‘Law and Justice’ (PiS) the party of president Duda has been leading in the polls for months. Yet Duda’s first month since taking office has not been without controversy. During his first official foreign visit to Germany, Duda tried to propose a new format for talks about the Ukrainian crisis which was quickly panned and its necessity questioned by all parties involved. While the Polish has a formal role in foreign and defence policy, his initiative was also generally negatively received as overstepping established boundaries between governmental and presidential responsibilities. It later emerged that Duda had also told his German counterpart Joachim Gauck that he did not consider Poland to be a state where everybody was treated equally, triggering another wave of criticism. Duda’s latest gaffe – although it is likely that this was planned in order to appeal to the PiS core electorate – was when he refused to shake hands with Prime Minister Ewa Kopacz during the commemorations of the outbreak of the WW II in Danzig.

Up to this point, Duda has is far from being a non-partisan president but his actions are almost reminiscent of PiS’ last president Lech Kaczynski and the 2005-2007 period when PiS-led governments led to Poland’s increasing isolation in foreign affairs and the questionable use of administrative resources and the judicial system against political enemies. Most recently Duda’s request to the Polish Senate for another referendum – to be held on the same date as the parliamentary elections and covering question ranging from the state retirement age and the management of state forests to the school starting age and thus mostly relating to changes introduced by the current government – was still denied. Nevertheless, the fact that letters still sent to his predecessor were sent back with a stamp ‘This person does not work in the Presidential Office’ rather than answered, shows how quickly Duda and his people have changed the character of the institution.[1] Duda has already declared that he will campaign on behalf of his party in the forefront of the parliamentary elections in late October, but (as always in Polish politics) it is too early to tell how his activism will impact on its electoral fortunes. On the one hand, PiS might benefit form the coattail effect; on the other hand, the Civic Platforms recently announced decision to co-opt several well-known conservative and left-wing politicians on its list might still sway voters in the other direction.

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[1] Interestingly however, the head of the important legal and institutional department and the presidential office’s longest serving employee, Andrzej Dorsz, who under Lech Kaczynski had still been banished to head the archive, has so far remained in his place.

Slovakia – Low turnout thwarts anti-LGBT referendum

This post first appeared on presidential-power.com on 9 February 2015

On Saturday, 7 February, Slovakia held a referendum on three questions pertaining to same-sex marriage with the aim of further restricting LGBT rights in the country. The referendum was initiated by the Christian right-wing organisation ‘Alliance for the Family’ (Aliancia za rodinu) after it gathered more than 400,000 signatures (50,000 more than required, ca. 8% of all citizens).[1] Despite being supported by the Catholic Church and a great number of other religious and civil society organisations, the referendum eventually failed to succeed due to low turnout.

Questions and result of the same-sex marriage referendum in Slovakia, 7 February 2015
QuestionYesNoInvalid
1Do you agree that only a bond between one man and one woman can be called marriage?94.50%4.13%1.36%
2Do you agree that same-sex couples or groups should not be allowed to adopt and raise children?92.43%5.54%2.01%
3Do you agree that schools cannot require children to participate in education pertaining to sexual behaviour or euthanasia if the children or their parents don’t agree?90.32%7.34%2.33%
Registered voters: 4 411 529Turnout: 21.41% (referendum not valid as turnout below 50%)

Source: http://www.volbysr.sk/en/data.html

The ‘Alliance for the Family’ was formed in late 2013 with the aim of enshrining the definition of marriage as being between a man and a woman and strengthening the ‘traditional family. In April 2014 started to collect signatures for their referendum initiative after having been supported by the Slovak Conference of Catholic Bishops as well as a number of other churches and religious groups (the Catholic Church even had a letter in support read out during Sunday worship). Parties and political leaders on the other hand were hesitant to support the referendum – the Christian Democratic Movement (KDH) was the only party to openly call for voting in favour of all questions, whereas others only asked their supporters to participate in the referendum without indication of how to vote.

Likewise, political leaders were hesitant to affiliate themselves with either side, careful not wanting to scare off potential voters (parliamentary elections will be held in March 2016) as well as not to worsen relations with the churches and grass-roots organisations. Prime Minister Robert Fico, leader of the left-wing SMER party, hinted at being in favour of some form of same-sex unions. However, in June 2014 (and thus while signatures were still being collected) the Slovak parliament – with the votes of Fico’s SMER which holds almost 2/3 of the seats – changed the constitution to re-define marriage as being a man and a woman (a move rumoured to be a deal with the KDH to push through further judicial reforms). President Kiska (independent, politically centre-right) initially declared that he would vote yes on the first two questions and no on the third, yet tried to relativise his statements after public criticism.

Presidents and referenda have difficult history in Slovakia. In 1997, president Michal Kováć and the government clashed over the scheduling of a referendum on NATO entry and inclusion of a question on introducing popular presidential elections. Kováć’s successor, Rudolf Schuster, on the other hand announced a referendum initiated by the opposition which called for the shortening of parliament’s term in 1999. Not only to avoid conflict, but certainly also to remain a more impartial position, rresident Kiska decided to put the questions before the constitutional court – a right the president only gained as part of the 1999-2001 constitutional reforms. In the end the Constitutional Court decided to exclude a fourth question from the ballot, judging it as unconstitutional.[2]

When the results started to come in, it soon became clear that the results of the referendum would be invalid due to low turnout – only the Námestovo Electoral District recorded slightly more than the 50% turnout that would have been necessary. Eventually, only 21.41% of voters cast their vote (i.e. only little more than twice the number of signatures submitted) which mirrors not only Slovak citizens’ turnout in the six previous referenda (only the 2003 referendum on EU entry achieved the required turnout) but also general voter apathy in the country. The referendum as such thus presents a dilemma for Slovak politics. Despite attracting much international criticism (most notably from Amnesty International), it is Slovakia’s first publicly initiated referendum and the ‘Alliance for Family’ is the largest civil organisation since the ‘Public Against Violence’ (the Slovak counterpart to the Czech ‘Civic Forum’) which toppled the Communist regime 25 years ago. Although the Alliance has thus managed what few others have managed to do – namely unite a not insignificant part of the public on a single issue and force it on the national agenda – its failure might eventually lead to even greater voter apathy.

It is not clear to what extent the results of the referendum can be interpreted with regard to the parliamentary elections next year. Superficially, it might appear that the KDH as the only party which actively supported the referendum might benefit (it with 8.8% it was the second largest party in the last elections), yet the parties on the political right in Slovakia are traditionally splintered and so are their support bases. It is thus unlikely that a single party may gain in a more multi-faceted electoral setting. The transformation of the Alliance into a new party is also unlikely – on Sunday representatives re-asserted their claim to be ‘citizen’s activists’ and not wanting to become politicians.

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[1] In the end 390,000 signatures were judged to be valid.
[2] The fourth question read: ‘Do you agree that no other form of cohabitation shall be awarded the special protection, the rights and the obligations which by legal norms are awarded to husbands and wives as of 1 March 2014 – in particular the recognition, registration or documentation as a form of cohabitation before public authorities, and the possibility of adopting the child of the other parent?’

See also: Croatia – Referendum criticised by the president and prime minister passed with large popular support