Kocemba, Karolina

Stambulski, Michal

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1/7Right-Wing Constitutionalism in Polandverfassungsblog.de/divine-decision-making/Karolina KocembaMichał Stambulski09 November 2020Divine Decision-MakingThe most recent abortion decision of 22 October 2020 of Poland’s Constitutional Court(“the Court”) did not come as a surprise. It is not, as some commentators would like tosee, an aberration, a departure from previous liberal and human rights-based standardsby a group of judges linked to the Law and Justice party. Rather, it is a consequence ofthe right-wing constitutionalism that has dominated the Court for years. This discoursethat introduced religious dogma as the basis for legal reasoning is undemocratic andexclusionary. It presents religious worldviews as textual consequences of the constitutionwithout taking into account the voice of citizens. The persistence of this type ofconstitutionalism can be demonstrated on example of a number of cases important for thepublic sphere in Poland.Religion in SchoolsThe Catholic Church’s involvement in supporting the democratic opposition during thesocialist era in Poland has given this organization a large amount of moral capital andgratitude from the post-Solidarity elite after 1989. This initial, privileged position hastranslated over the past several decades into a constitutional infrastructure that isadapted to it.The first important ruling, in which Catholic, right-wing constitutionalism has emerged,was the ruling of 30 January 1991 (K 11/90) concerning the introduction of religion intoschools. Then Prime Minister Tadeusz Mazowiecki admitted that he was receiving callsfrom bishops who expected religion to enter schools as soon as possible. Not wanting tohave an opponent in the Church (as it could affect the election results), religion wasintroduced to schools by instruction of the Minister of Education, not by act. It was donewithout deliberation in the Parliament. The instruction was challenged to the Court by thethen Ombudsman Prof. Ewa Łętowska.The Court found the instruction to be in accordance with the Constitution. In itsjustification, it stated that the principle of secularism and neutrality of the state was notviolated because the state curriculum is not saturated with religious content and theteaching of religion is voluntary and it constitutes an internal matter of the churches. TheCourt also stated that, for reasons of secularism, religion classes in state schools couldnot be made compulsory but could not be prohibited either. The judges also saw noviolation of the principle of separation between church and state and of the principle ofsecularism and neutrality of the state, as well as of the related principle of the non-2/7subsidiarity of churches. The Court argued that the instruction only makes the rooms ofthe schools available, and that “the payment of remuneration to religion teachers cannotbe equated with subsidizing churches”.The Court also disagreed that the declaration of willingness to participate in religiouslessons is tantamount to a declaration revealing one’s religion and violates the right toremain silent in matters of one’s religion because “it is possible, after all, for a non-believer to send a child to religion classes”.This ruling introduced an abstract argumentation, referring to an unspecified concept of“religion”, the consequences of which favor one particular religious institution (theCatholic Church). Moreover, it introduced the conviction that, as far as “religion” isconcerned, legal requirements do not have to be strictly observed. Religion classes wereintroduced to schools authoritatively by the Minister of Education, without debate andvoting in parliament. It was established then that the question of the presence of religionin a public space is a legal question, concerning the content of the constitution, and not ademocratic question, concerning politics or the will of citizens.The Unconstitutional Nature of Abortion Due to the SocialSituationAnother important decision is an abortion judgment from 1997 (K 26/96) – also quoted inthe justification of the recent ruling prohibiting abortion due to defects of the fetus. TheCourt ruled that the abortion for social reasons, i.e. because of the difficult livingconditions of a woman, is unconstitutional. This premise was added to the law by thedemocratically elected parliament in 1996. It had been in force since 1956 until it wasremoved in 1993 by the so-called “abortion compromise”, i.e. the Family Planning Act,which allows abortion in three cases (rape, a threat to a woman’s life/health, damage tothe fetus). The “compromise”, or de facto limitation of abortion, was made due to pressurefrom the Catholic Church, without the acceptance of all political forces, and causedconsiderable social protests.In the 1997 judgment, the Court stated that, although women have a constitutional rightnot to impair their material situation, this protection should not as far far as to violate thefundamental good that is human life. The rights and freedoms of pregnant women do notjustify depriving the life of the “conceived child”. The Court only once used the word“embryo”, the word “fetus” 47 times, and 150 times the word “child”. More than the word“woman” (8 times) or “pregnant woman” (29 times) the Court used the word “mother” (42times). Furthermore, the Court derived the protection of “conceived life” from the principleof the democratic state ruled by law. In a rather unconventional way – to put it mildly – theissue of the rule of law was then linked to the beginning of human life at conception. TheCourt found that the rule of law:3/7“(…) is realized only as a community of people, and only people can be propersubjects of the rights and duties established in such a state. The basic attribute ofthe human being is his life. Deprivation of life therefore simultaneously annihilatesman as the subject of rights and duties. (…) The value of the constitutionallyprotected legal good that is human life, including life developing in the prenatalphase, cannot be differentiated. (…). From the moment of its creation, therefore,human life becomes a constitutionally protected value. This also applies to theprenatal phase.”This decision linked the concept of the rule of law to the fundamentally Catholic principleof protecting life from conception. At the same time, this ruling defined that the fetusalready has a full, constitutionally protected legal subjectivity that is equal andindependent of the will of a woman. It also consolidated the perception of the social roleof women through the prism of being mothers.Conscience Clause for DoctorsThe Court also contributed to limiting access to legal abortion in its judgment of 7 October2015 (K 12/14) concerning the conscientious objection clause, i.e. a legal regulationallowing a doctor to refuse to perform a service if it would not be in accordance with his orher conscience. The Court once again invoked the principle of the democratic rule of law,as evidenced by freedom of conscience and religion. It further stated that theconscientious objection was based on the Hippocratic Oath. The Court did not considerwhat the consequences of such a clause would be and that in some regions of Polandwomen would not be able to have a legal abortion, as in several provinces in easternPoland most doctors refer to the conscience clause. As many as ¼ of the benchsubmitted separate opinions. These judges argued that the freedom of conscience wasnot in conflict with other freedoms and constitutional rights. For example, patients’ rightswere completely ignored, especially the limitation of women’s medical care, despite theirhealth insurance contributions.Catholic and Legal ConstitutionalismAll of those pointed judgments were made before the Law and Justice party took powerand “hijacked” the Court. In each of the above-mentioned adjudicating benches, themajority were men. All of those judgments had separate opinions. At the same time,these rulings did not meet with any significant criticism in the legal literature (except forindividual exceptions). The judges in the panels had a great deal of symbolic and culturalcapital − it is an accepted practice that the judges of the Court are appointed amongprofessors and combine their work as judges with university positions.The quoted judgments form a coherent picture of the discourse on the Polish constitution,which we can call right-wing constitutionalism, which is at the same time Catholic andlegal. Catholic because it accepts the religious dogmas of the Catholic Church as anideological background for the interpretation of regulations. Legal because it presents theideological and political decisions as a logical consequence of objective legal doctrine.4/7It accepts a broadening interpretation of freedom of conscience and religion and theassumption that full human subjectivity arises at conception. The first view leads to aprivileged position of the Catholic Church in the public sphere. Since freedom ofconscience and religion are so important, the State should actively support the institutionsthat allow the exercise of these rights. The Catholic Church is the largest religiousinstitution in Poland, thus it has the greatest social resources allowing, for example, topursue crimes of so-called “offending religious feelings” or to demand money transfersfrom the state. The second view allows for a gradual reduction of women’s rights due tothe subjectivity of the fetus. By linking the moment of creation of human subjectivity with ametaphysical solution, it makes constitutionalism independent of the physical conditionsof the body and medical knowledge. This view also contains several assumptions aboutthe social role of a woman − a woman is perceived mainly by the possibility of giving birthto children and her relations with the fetus.This discourse treats the Constitution as an objective text and not a changing set of socialpractices and values over time. It assumes that only specially trained legal technicianshave access to this text and a monopoly on its interpretation. Access to the clarity of thistext ensures knowledge of objective interpretation techniques. As expressed by the Courtin its resolution of 07 March 1995 (W 9/94), its interpretation of the Constitution “does notinclude or add anything to the system of applicable legal norms, but only states what thecontent of these norms is”. Such a decision petrifies the meaning of the Constitution andat the same time takes away any responsibility from the interpreter. It also avoids anypolitical considerations.Right-wing legal constitutionalism is undemocratic and exclusionary. By presentingreligious metaphysical decisions as obvious from the content of the constitution, itdepoliticizes it. Citizens are deprived of the possibility to define and argue about valuesthat are important for the community and this role is taken over by the judges of theCourt, who support themselves with religious dogmas. At the same time, this processexcludes all those who do not share Catholic metaphysics. The Constitution, out of thevulnerable social and historical arena of conflict between different world views, becomesa dogmatic declaration of one acceptable way of thinking. And the Constitutional Judgewith his or her arbiter, who tries to harmonize and include other views in the process ofinterpretation, becomes the guardian of power and domination of one religion.Tackling the ideological foundationsThe development of Catholic and legal constitutionalism as a default form of constitutionaldiscourse in the Court was accompanied by a progressive secularization of Poles. Thisseems understandable – the fading authority of the Church to decide about the lives ofPolish women is replaced by the legal apparatus of repression.The ruling of 22 October 2020 has a chance to go down as the worst judgment in thehistory of Polish constitutionalism. Poorly justified, politically motivated, based on a senseof moral superiority, reducing complicated matter to shining slogans without taking intoaccount and considering other, rational perspectives and social moods. At the same time,5/7it must not be forgotten that this ruling is a consequence and culmination of many years.The struggle for women’s rights is, therefore, not only an objection to one or anothercomposition or decision of the Court, but it requires going beyond the ideologicalfoundations present in this institution from the beginning. Right-wing constitutionalism isthe “default setting” of most potential candidates for the position of judge of the Court.The development of such a new, more inclusive, and democratic constitutionalism is anurgent task for legal theory and jurisprudence. As Thomas Jefferson argued, eachgeneration is entitled to its own version of constitutionalism.The Polish version of this text was published in “Kultura Liberalna”.ReferencesReferencesLICENSED UNDER CC BY SASUGGESTED CITATION  Kocemba, Karolina; Stambulski, Michał: Divine Decision-Making: Right-Wing Constitutionalism in Poland, VerfBlog, 2020/11/09,https://verfassungsblog.de/divine-decision-making/, DOI: 10.17176/20201109-235704-0.Explore posts related to this:Other posts about this region:Polen6/7Karolina Kocemba Dr. Karolina Kocemba is a researcher at the Centre for LegalEducation and Social Theory, University of Wrocław.7/7Michał Stambulski Michał Stambulski is post-doctoral researcher at the ErasmusUniversity Rotterdam and assistant professor at the University of Zielona Góra.Explore posts related to this:Other posts about this region:PolenNo Comments Join the discussionLICENSED UNDER CC BY SA

Divine Decision-Making:Right-Wing Constitutionalism in Poland

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Divine Decision-Making:Right-Wing Constitutionalism in Poland

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