“This is not a full-fledged decision of the Tribunal, but an arbitrary opinion of the majority of the panel chaired by Julia Przyłębska”, “the judgment must be declared as non-existent due to the improper appointment of the Tribunal in which the so-called doubles were sitting”, or in a more emphatic way: “unconstitutional decision”, “violation of law”, “unlawful whim”, “a purely political act, without legal force or significance”, “evidence of failure in understanding the Constitution by the Constitutional Tribunal”… – these are just a few examples of randomly selected media comments accompanying the judgment of the Constitutional Tribunal of 22 October 2020 issued in case No. K 1/20.
I do not intend to deny these allegations or convince anyone that the current composition of the Tribunal does not raise the slightest reservations—neither with regard to the personal squad nor the procedures practiced in it. This text is neither intended to present arguments on a moral or legal qualification of abortion. I will not correct the untrue arguments (popular today and almost universally formulated) on the allegedly purely religious motivation regarding the protection of human life, the systemic principle of a secular state (which, of course, does not exist in the text of the applicable Constitution of 2 April 1997), the separation of politics from the faith of the citizens—desired by the liberal left, or debatable views (not only in the light of political axiology) on the superiority of the individual will to perform an abortion over the legal protection of life. There have been well-known disputes on these topics for a long time, the arguments of both sides have already been expressed many times, and the result of their confrontation is the emotional „affirmation of the convinced” rather than reaching conclusions based on honest dialogue and factual reflection.
I would rather emphasize the ease with which critics of the Tribunal’s judgment—or rather it should be said: the opponents of the legal perspective of the protection of human life from its conception—disqualify it in the legal context. The astonishment must be even greater as this narrative is often set by professors of legal sciences, experienced lawyers, legal advisors or practicing judges of general courts, who unreflectively and categorically question the judgment of the Constitutional Tribunal as non-existent, non-binding or non-valid.
Various reasons are given (e.g. the judgment was issued by an improperly staffed authority, it was issued on the basis of an incorrect interpretation of the provisions of the fundamental law, against the standards resulting from the international law, and so forth. It even violates—although those who are saying that are embarassing themselves—a “compromise” lasting more than a quarter of a century, or it was issued during the COVID pandemic, which is allegedly a circumstance that discredits the correctness of the legal reasoning behind the decision), but, according to these commentators, the position of the Tribunal has a flaw which makes it unlikely to be maintained in the future. Thus, it is suggested that the judgment of 22 October is a minor, temporary incident, a manifestation of the subjective will of those currently ruling, an event reduced solely to the political (not legal) sphere—that is, the worse one, because it escapes rational calculation, ruled exclusively by particular emotions, metaphysical moral judgments and unverifiable worldviews.
The main weakness of the position outlined above is the manipulation (probably quite conscious), according to which the understanding of the principle of the protection of life in Art. 38 of the Constitution (“The Republic of Poland provides everyone with the legal protection of life”) and the inherent and inalienable dignity of every human being in Art. 30 (“The inherent and inalienable dignity of human beings is the source of human and civil freedom and rights. It is inviolable and its respect and protection is the responsibility of public authorities”) is a novum, an aberration against the background of the text of the fundamental law and previous jurisprudence. Thus, the fact that the commented judgment is a continuation of previous decisions of the Tribunal (e.g. the judgment of 28 May 1997, Ref. No. K 26/96), position of doctrine and consistent understanding of constitutional structures, values and principles, is ignored. In this context, the objections to the improper staffing or the “right-wing conservative tilt” of the current adjudicating panel are unconvincing.
It seems, however, that this abortion dispute—although symbolic, extremely loud and with a turbulent course—is only the first example of a public matter in which the parties confronted with each other are ready, in an act of desperation, to deny legitimacy to events that do not correspond to their ideological preferences and political sympathies. To this day, one can hear about the allegedly unlawful presidential elections, whose unconstitutional term and procedural failings should result in a vacancy in the office of the head of state, the illegality of numerous restrictions introduced as a result of the COVID pandemic, or the non-recognition of the Disciplinary Chamber of the Supreme Court.
Moreover, one can risk assuming that not only in modern Poland, but in any democratic country experiencing a radical social division, a similar phenomenon is taking place—it is enough to look at the controversy related to the recent presidential election in the United States or practically the entire four-year term of Donald Trump, during which numerous accusations were made of acting against the Constitution, violating the American systemic practice, infringement on the separation of powers, and so forth. The American president did not avoid controversy, especially during the process of supplementing the judiciary of the federal Supreme Court (where a sharp social-party division automatically implies assigning judges to the group of “republicans” or “democrats”). However, while the accusation of acting against the Constitution seems to be one of the most frequently used techniques of discrediting opponents on the public scene and should not be particularly surprising, the raising of it against constitutional judges happens rarely.
Apart from the consequent jurisprudence and the text of the Polish Constitution, unchanged for many years, the essence of the competences of the constitutional judiciary is the weighing of systemic principles that remain in mutual tension and cannot be fully implemented. Is it acceptable to destroy a civilian plane taken over by terrorists with hostages on board? Should the in vitro fertilization procedures be available to women who are not married or living together with a man? Does the principle of religious freedom imply that the grade for religion should be included in the average grades of a student in a public school? These are some of the questions constitutional judges are facing. A literal analysis of the legal text is not enough to solve them, it is necessary to conduct in-depth intellectual reflection, open to moral and philosophical arguments. It is also unlikely that the received answers will satisfy everyone.
Is it justified to expect that the position expressed in the judgment of 22 October will confirm the constitutional standard of the protection of human life for good, and consolidate the consistent line of the decisions of the Constitutional Tribunal on abortion for many years? I am afraid that is an overly optimistic prospect. It should be remembered that—apart from the hostile reaction of many influential social circles, denying it validity—the judgment has still not been published in the Journal of Laws. Moreover, although the probability of changing the text of the Constitution in the coming years is small, the global trend of the “human rights revolution” (a phenomenon quite well described in foreign and Polish scientific and journalistic literature: on the one hand, it designates a quantitative increase in rights and freedoms considered as individual basic/fundamental rights, with a simultaneous “qualitative change”, that is, the departure from the classical understanding of them; an example may be the focus on so-called reproductive rights at the expense of the traditionally understood freedom of speech or religion) together with international pressure, may lead to a re-interpretation of constitutional categories.
When this happens, will we as well hear about the mistake of the adjudicating panel, which should be legally ignored?
dr hab. Krzysztof Koźmiński
University of Warsaw