Polish laws on abortion are the strictest in Europe. The government refuses the right to safe abortion to people with wombs, allowing for abortion tourism and self-induced miscarriage. This wasn’t enough for religious fundamentalists in the Polish parliament.
A group of 119 members of the Sejm, consisting of representatives from PiS, PSL-Kukiz’15 and the Confederation, the most extreme right-wing party, requested a review of the constitutionality of the abortion law.
It wasn’t the first time when basic women’s rights were put in danger in Poland, as they had been used several other times to shift society’s attention from some issues that were problematic for the Polish government.
The situation wasn’t different this time, as because of PiS incompetence Poland’s COVID-19 infection rate is skyrocketing, even though they had several months to prepare for the second wave of the pandemic. Women’s rights organizations raised awareness about the Tribunal’s ruling, mostly on the internet due to the pandemic.
In the last few years, the topic of abortion was brought up multiple times and then quickly covered up — to avoid angering Polish citizens, who mostly oppose limiting the already restricted women’s right to a safe termination of pregnancy.
Surprisingly, unlike any time before, on October 22, the Constitutional Tribunal decided that abortion in the case “when there is a high probability of a severe and irreversible fetal impairment”, and as result 95% of the abortions carried out in Poland, is illegal.
Protests Broke Out across the Country
People got shocked and enraged. I personally took part in a protest on Thursday evening and I already was with hundreds of people, just hours after the ruling, and in the following days the demonstrations were growing in strength and volume.
People were showing their anger online and in real life all over Poland, not only in the big cities. There were marches (or walks, as they are called, to avoid allegations of organizing illegal events), every evening and blockades of the cities every Monday. The society united against the ruling, even many right-wing politicians and Catholics say that this ruling goes too far.
Demonstrations were held even in small towns and in traditionally conservative regions. It all resulted in the biggest protest wave since the fall of communism. The following Friday, an enormous crowd of 100 000 people took the streets of Warsaw and marched five kilometers to show up near the home of Jarosław Kaczyński, leader of PiS — even though the street where the house is located was completely blocked by hundreds of police officers.
People Protest against the Decision of the Constitutional Tribunal
Why are the people protesting against the government if it wasn’t its law that banned the abortion? Why are they protesting against the ruling of the independent Tribunal? Aren’t those the same people who say that the constitution in Poland is being broken?
Well, there are several answers to these questions. Firstly, the appeal to the Tribunal was signed mostly by members of PiS. Secondly, and most importantly, the Constitutional Tribunal, same as many other state authorities, isn’t independent anymore and is controlled by the ruling party.
This is the main problem of the Polish Republic, the authoritarian tendencies of PiS — the abortion ban is only one of the symptoms of it and is the reason why people are protesting against the government. It wasn’t one legal act that let that happen, but a long process and to investigate it all we need to go back to 2015.
The Beginning of the Decline of Democracy in Poland
In 2015 Poland held both the presidential and the parliamentary elections. In May a right-wing candidate from PiS Andrzej Duda surprisingly defeated incumbent President Bolesław Komorowski, supported by the centrist PO party, which at the time was leading the government coalition, only to lose their position in October when PiS gained power in both houses of parliament as well.
In Poland, judges of the Constitutional Tribunal have terms and it is the right of the Sejm, the lower house, to appoint them every nine years. Not long before the elections, PO had chosen five judges to the Tribunal: three of them replaced those whose terms would end before the new Sejm would be elected (resulting in a vacancy) and two replaced judges whose terms ended after the elections.
The start of the constitutional crisis in Poland dates back to when President Duda refused to swear in all of those judges, even though he has no right given by the constitution to refuse, he is obligated to do so.
After the parliamentary elections that PiS had won, the lower house passed an amendment to the existing law, changing the functioning of the Tribunal, then adopted five resolutions “on the declaration of lack of legal force” of the election of five judges by the Sejm of the previous term and appointed new judges.
Those were later sworn in by president Duda around midnight in a closed ceremony and the law was changed again, to make it impossible for the president of the Constitutional President to exclude these PiS judges from ruling. The Tribunal later decided that PO had chosen three judges, whose terms would end before the next parliament would gather, correctly, and the other two improperly.
Prime Minister Szydło decided to not publish this ruling in the Journal of Laws — in Poland it is the only source of law and it is solely the responsibility of the prime minister to publish laws in it, and according to the Constitution he or she should do it immediately.
However, this was ignored by the PiS regime and they kept all of their judges, making the Constitutional Tribunal invalid until today. During these lefislative efforts all acts were proceeded extraordinarily quickly in both houses and then signed, often during nighttime.
Throughout this process many independent state authorities and non-governmental organizations raised doubts about those changes. This resulted in legal dualism that is still present in the polish law. A few months later some additional amendments were made, and the Tribunal began to check the correctness of them.
Despite that, PiS leader Jarosław Kaczyński announced that the prime minister wouldn’t publish the ruling, even though he has no authority to say that nor the Prime minister has authority to do that, although his words turned out to be true.
Later, a group of PiS judges in the Tribunal would repeatedly not show up in the court and obstruct its proceedings to make it impossible for the still not fully dependent Tribunal to work.
No More Brakes for PiS
On December 19, 2016, the term of the president of the Constitutional Tribunal, Andrzej Rzepliński, ended, and PiS ultimately and definitely took it over and appointed its own President — they don’t have to attack the Tribunal anymore, contest the rulings and not publish them — the Tribunal is just judging the way Jarosław Kaczyński likes and is no longer independent.
From this moment, they don’t have any institution that can stop their so-called “reforms”, as the Tribunal will recognize all of them as constitutional. Since then, they have chosen people like communist prosecutor Stanisław Piotrowicz or Krystyna Pawłowicz, who became infamous for vulgarly offending her political opponents, to be the judges.
They made the Tribunal recognize the verdict of the — at the time still independent — Supreme Court, which decided that some acts of law introduced by PiS to take over the whole judiciary system and the Supreme Court itself were incompatible with the Constitution and European law, as illegal, even though the Tribunal has no right to do that.
Then they refused to introduce a state of emergency during the pandemic, just so they could hold elections, resulting in most of the restrictions being illegal. Ultimately, they took basic women’s rights away from them.
All of these terrible offenses are secondary to the fact that the one of the most important institutions, the independence of which is crucial to maintaining democracy in Poland — as their ruling about the legality of laws passed in Poland is final, is now dependent from the PiS regime, nothing more than a puppetry.
This is the biggest win for the PiS and the biggest loss for the Polish society and rule of law.
The Future of Freedom in Poland
It is crucial for democracy in Poland to make the Constitutional Tribunal independent and relevant again — either as a result of the ongoing protests, or in other circumstances. We hoped it could happen as the result of the presidential elections, but president Andrzej Duda secured his second term.
With his victory PiS now feels undefeated, Jarosław Kaczyński is ready to follow the steps of Victor Orban and other leaders prompting to authoritarianism: nationalizing free press, fighting with universities, discriminating minorities, the list goes on and on — the worst part is that we don’t know what to expect from them.
One thing is certain — in order to make Poland a liberal, European, and free country for everyone we need to defeat PiS.