DO YOU KNOW WHAT WILL HAPPEN ON OCTOBER 15, 2023?

October 15, 2023, due to the parliamentary elections that take place on that day, is an important day for every Polish citizen. This year, untypically, a nationwide referendum will be held concurrently with the elections.

REFERENDUM, namely WHAT?

A referendum is a type of voting in which eligible citizens of a country or a part of it can express their opinion on the issue which the referendum addresses. During a referendum, an answer is given to the question or questions posed in the form of "FOR / AGAINST" or a choice is made between the options presented. A referendum is also referred to as "popular voting" because it involves a direct vote by citizens that have an active voting right, which is the highest form of voting within direct democracy.

The importance of this institution lies in the fact that in the Polish legal system it has already been placed in Article 4(2) of the Constitution of the Republic of Poland: "The people exercise power through their representatives or directly".

WHO HAS THE RIGHT TO PARTICIPATE IN A REFERENDUM?

The Constitution guarantees the right to participate in the referendum. Under Article 62: "1. A Polish citizen has the right to participate in a referendum and the right to elect the President of the Republic, deputies, senators and representatives to local government bodies, if he or she is 18 years old at the latest on the day of voting.

2. The right to participate in the referendum and the right to elect shall not be granted to persons who, by a final court decision, are incapacitated or deprived of public or electoral rights."

This means that any person who is entitled to vote in parliamentary elections has the right to participate in the referendum.

The legislator may restrict the constitutional right to participate in a referendum on the basis of Article 31(1) of the Constitution, i.e. "only by law and only when they are necessary in a democratic state for its security or public order, or for the protection of the environment, public health and morals, or the freedoms and rights of others. Such restrictions may not affect the essence of freedoms and rights."

The above provision narrows the scope of rights guaranteed by the Constitution and sets the limits of government interference in the area of citizens' freedoms, because it indicates the conditions that must be met in order to introduce a limitation on a constitutional right.

In 2005, the Constitutional Tribunal issued a judgment (ref. K 18/04) in which it held that "not every extension of a particular civil right to other persons leads to a violation of the constitutional guarantee granted upon that right," but neither in the cited provision, nor in any other provision of the Constitution, is there information about the possibility of extending the right to participate in referendums and other elections to foreigners, and the provision itself indicates that only Polish citizens have the right.

LOCAL REFERENDUM

The Constitution provides for two types of referendum by territory: local referendum and nationwide referendum.

By means of a local referendum, members of a local community can decide on matters affecting that community. The rules and procedure for holding this referendum are set forth in the Law on Local Referendum of September 15, 2000. The local referendum may be attended by persons who permanently reside in the area of a given local government unit (province, district or municipality), who have the active voting right to the constituent body of that unit. A local referendum is valid if at least 30% of the persons eligible to vote take part, unless the referendum concerns the dismissal of a directly elected local government body, in which case at least 2/3 of valid votes must be cast.

NATIONWIDE REFERENDUM

The second type of referendum highlighted in the Constitution is a nationwide referendum, and it is precisely such a referendum that will be held in Poland on October 15, 2023.

A nationwide referendum is held with regard to matters of special validity to the state and is ordered by the Sejm, by an absolute majority of votes in the presence of at least half of the statutory number of deputies, or by the President with the consent of the Senate, by an absolute majority of votes in the presence of at least half of the statutory number of senators. The rules and procedure for holding a referendum are governed by the Act of March 14, 2003 on the nationwide referendum.

The right to participate in the referendum is vested in every citizen of the Republic of Poland, if the person is 18 years at the latest on the day of voting, unless the person has been incapacitated by a final court decision, has been deprived of public rights by a final decision of the Court or the State Tribunal. The date of a referendum must be set for a holiday and can be held on either one or two days.

Voting is conducted in:

– permanent voting districts established under the Election Code;

– voting districts established in hospitals and social welfare institutions;

– voting districts established in prisons and detention centres, as well as in the outer wards of these prisons and detention centres;

– voting districts established for Polish citizens residing abroad;

– voting districts established for Polish citizens on Polish sea vessels.

Persons eligible to participate in the referendum shall be entered in the register of persons eligible to vote. Each person can be entered in only one list.

HOW DOES VOTING IN A REFERENDUM PROCEEDS?

The ballot shall bear the designation of the type of referendum, the governing entity and the date of the referendum, the question or options for resolving the issue subject to the voting and information on how to vote.

The voter gives an answer to the referendum question by putting an "x" in the box corresponding to the positive or negative answer or the given solution option. If an "x" mark is put next to both answers or not in either – the vote is considered to be invalid. Adding additional questions or answers on the ballot does not affect the validity of the vote.

The organization of the preparation and holding of the referendum is financed from the state budget.

The result of a nationwide referendum is binding provided that more than half of the persons eligible to vote participated in the voting. This means that invalid votes are taken into account when counting the turnout to consider the vote binding.

The referendum will be resolved when a majority of valid votes are cast in response to the question posed.

In the event of a binding result of the referendum, the relevant state bodies will immediately take steps to implement the result in accordance with its result.

CAN ONE REFUSE TO VOTE IN A REFERENDUM?

Participation, both in elections and referendum, is voluntary. Due to the coincidence of dates, the referendum ballot will be issued this year along with the ballot for the parliamentary elections. A person eligible to vote can decide whether to vote at all and in which voting.

If a voter wishes to participate in parliamentary elections only, the person has to refuse to accept the referendum ballot. In such a situation, during the collection of ballots, one should communicate to the electoral commission one’s refusal to accept the referendum ballot, along with a request to note this fact next to one’s name.

It is important that if one does not want to vote in the referendum, one should not collect the card only with the intention of destroying it – in such situation one risks criminal liability under Article 248(3) of the Criminal Code: "Whoever, in connection with elections to the Sejm, the Senate, the election of the President of the Republic of Poland, elections to the European Parliament, elections of local government bodies or a referendum: (…) destroys, damages, conceals, alters or falsifies election or referendum protocols or other documents(…) – shall be punished by imprisonment for up to 3 years."

SUMMARY

A referendum is an important legal tool that enables citizens of a democratic state of law to express their will on an issue in a direct manner. However, it is important to consider whether the questions posed in the referendum actually address an issue that is materially important and provoking discussion in society, and whether holding a referendum actually serves to learn the public's opinion on a given issue and not any other purposes.

Remember that the decision to participate in the referendum rests entirely with the voter.