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Poland constitutional consultative referendum

20 June 2018 Blanka Kolenikova

Polish president Andrzej Duda on 12 June proposed 15 questions for a consultative referendum that his office seeks to hold on changing the country's constitution.

  • Proposed constitutional amendments will likely pave the way for further disagreements between Poland and the European Union.
  • However, Poland's recent efforts to improve its ties with the EU, the lack of the required parliamentary majority for constitutional changes, and a stronger or more developed civil society will probably mitigate the risks.
  • The immediate reaction of the Polish public and the political opposition, as well as the EU, to the announcement on the referendum's consultation points will serve as an early-warning indicator of the nature of Poland's discussions with the EU on this issue.

Duda proposed to hold the referendum in November, when Poland celebrates the centenary of its independence. Duda argues that the public "should be given a chance to reflect on whether the constitutional changes are required". The current constitution was adopted in 1997 and replaced the previous amendments adopted after the fall of the communist regime. Above all, Duda's points for consultation include:

  • Enshrining Poland's EU and NATO memberships in the constitution, but also instituting supremacy of Polish law over EU law
  • Retirement age guarantees (60 years for women, 65 years for men)
  • Strengthening presidential powers on foreign and defense policies
  • References to Poland's "thousand-year Christian heritage"

Room for concerns
Duda was nominated for the presidential post in 2015 by the now-ruling right-wing/nationalist Law and Justice (Prawo i Sprawiedliwość: PiS) party. Since coming to power in October 2015, PiS has faced several disagreements with the European Commission over the rule of law, related to judicial reforms. In 2017, Poland became the first EU member state to face the bloc's rule of law investigation under Article 7 of the EU treaty (see Poland: 10 January 2018: New centrist cabinet appointments likely to placate, but not completely resolve, Poland's political standoff with EU).

Since 2010, the Commission has faced a similar political impasse with Poland's regional peer, Hungary, which is governed by the right-wing/nationalist party Fidesz. In 2012, Fidesz embarked on a wide-ranging constitutional review to "cut Hungary's ties with its communist past". The Commission also criticized that exercise for undermining the democratic system of checks and balances in Hungary. That ultimately led to several subsequent amendments before the Hungarian basic law came into force and further deteriorated Hungary's relations with the EU.

There is a close alignment of some segments of domestic policies between Poland and Hungary (the PiS leadership had stated in the past that it deemed Hungary's case as an example of the legislative changes that it would seek to enact). With this in mind and the fact that Duda is a PiS nominee, the Commission would likely be concerned that any changes to the Polish constitution would have the potential to undermine Poland's rule of law or democracy. This would likely cause yet another point of contention with the EU.

Outlook and implications
In our view, there are several factors likely to mitigate the development of a disagreement with the EU similar to that with Hungary during that country's constitutional review:

  • First, Hungary's constitutional changes were never put up for public consultation, prompting heavy criticism from Fidesz's opponents and the domestic political opposition.
  • Second, Hungary's Fidesz had a constitutional parliamentary majority in 2012 that enabled it to pass the constitutional changes without support from the opposition. Poland's PiS only holds a simple parliamentary majority and would require the approval of the opposition for constitutional amendments.
  • Third, PiS had in the past reacted to public pressure and reversed unpopular legislation (e.g., the proposal for stricter abortion laws in 2017). Peaceful, but large, public protests would probably mitigate the risks that the PiS government would enact any domestically publicly unpopular changes or those raising serious concerns with the EU.
  • Last, but not least, under the premiership of Poland's Prime Minister Mateusz Morawieczki, Poland seems to have moderated its criticism of the EU (unlike Hungary, which is still governed by Fidesz) and has even taken several conciliatory steps over the judicial reforms to address the Commission's concerns. We project that this trend is likely to continue, with Morawieczki probably unwilling to undermine his progress on Poland-EU conciliation with another political dispute or reluctant to reinforce Commission's concerns over the country's rule of law and/or democracy.

Nevertheless, even if publicly approved, some points of constitutional overview are likely to prompt the EU's criticism, particularly those related to the retirement age. Such a provision would contradict the current trend across the EU, where political parties tend to address the issue of aging population, and therefore its impact on public finances, through an increase in the retirement age in general. Furthermore, enshrining supremacy of Polish law over the EU law would also be likely to cause disagreements with the Commission. Given that the proposed referendum will - for now - only have a consultative rather than a binding nature, we do not assess that new amendments would be enacted in their current form in case of strong EU opposition.

Indicators to watch include the immediate reaction of the country's opposition parties, which would have to approve any constitutional amendments, as well as any response from the EU. Progress on negotiations between the EU and Poland on the latter's judicial reforms and reverting the Article 7 procedure will also serve as a positive indicator of more conciliatory discussions with Poland on its proposed constitutional changes.

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