by Andrzej Gajcy

The article was published in Polish on Onet.pl.

• The ruling party has made a decision to refrain from publishing the judgment of the Constitutional Tribunal restricting the right to an abortion in the Official Journal until a written justification is issued by the Tribunal’s judges
• Until then, all parliamentary work on the President’s bill, which slightly mitigates the effects of the ruling of 22 October, is to be suspended.
• It arises from Onet’s findings that the politicians of the United Right group provided their informal comments on the ruling to the TK, clearly indicating the need to leave leeway for interpretation in order to be able to mitigate the effects of the ruling in an act of law.
• We can only hope that such legal leeway will be included in the justification of the ruling; otherwise it will be difficult for us to get out of this political deadlock – we hear at Nowogrodzka Stree t (PiS party headquarters).

A month has just passed since the Constitutional Tribunal issued a highly publicised ruling declaring the provision of the so-called 1993 Anti-Abortion Act allowing abortion in the case of a severe and irreversible impairment of the foetus or an incurable disease threatening its life to be unconstitutional.

This ruling triggered a wave of protests in many Polish towns and cities, the largest being in Warsaw, where demonstrations have been held, among others, near the PiS chairman’s home.

From that moment on, the Government Legislation Centre, on the recommendation of – as we wrote earlier in Onet – Prime Minister Mateusz Morawiecki himself, is withholding the publication of the Constitutional Tribunal’s ruling in the Journal of Laws, even though the constitution clearly provides for the obligation to publish it forthwith. Article 190 of the constitution clearly states that the rulings of the Constitutional Tribunal ‘shall be announced forthwith in an official body’ and ‘rulings of the Constitutional Tribunal shall be universally applicable and are final’.

Therefore, in sticking to the letter of the law, Mateusz Morawiecki’s government is breaching the provisions of the constitution, by blocking the publication of the Constitutional Tribunal’s ruling of case reference K1/20 for a month. However, the people from the head of government’s environment and a large number of politicians from the United Right group, who claim that the Tribunal’s ruling cannot be published until its written justification is issued, does not accept this interpretation. Although, when we look at the practice to date, the judgments of the Constitutional Tribunal were generally published before the written justifications appeared.

When asked on Monday evening on TVN 24 about when the Tribunal’s ruling will be published, the Head of the Prime Minister’s Chancellery, Michał Dworczyk, clearly stated: ‘We are waiting for the justification’. And he added: ‘This justification is needed to be able to create laws that will build a certain social compromise, which is very much needed, because we have seen what kind of emotions this judgment has encountered’.

This is not the first time that politicians from the United Right have interpreted the provisions of the constitution in such a way as is convenient for them. In fact, the ruling of 9 March 2016, which, four years ago, brought about a serious crisis for the Constitutional Tribunal related to the legality of the current judicial membership of the Constitutional Tribunal being challenged, the effects of which we are still experiencing to this day, has never been published.

A divided ruling camp

However, this is the first time that politicians in the ruling camp headed by President Duda have so openly contested the Tribunal’s ruling, announcing – even before its publication – that it would be mitigated by an act of law.

The presidential bill, which is intended to be a compromise proposition designed to calm down social sentiment, has been lying in the Sejm for many days now. Although it was already sent to the joint committees on health and justice on 3 November, no legislative or legal work is taking place on it in the Sejm, because it cannot, because, without the publication, the judgment of the Constitutional Tribunal is not a binding law.

The Head of State wants abortion to be legal if ‘prenatal tests or other medical indications suggest there is a high probability that the child will be stillborn or will have an incurable disease or defect that will inevitably and directly lead to the child’s death, regardless of the therapeutic measures taken.’ This is the wording of the amendment submitted to the Sejm.

According to Duda, the idea is that it should not be possible to terminate a pregnancy if the child has other developmental defects, such as Down’s syndrome, whereas women would not have to give birth to children who it is obvious will die immediately after birth.

However, the presidential bill quickly incited a wave of criticism from the conservative fraction of PiS, some of the opposition, as well as from so-called pro-life activists and Radio Maryja. The ruling party has already submitted a list of objections to the bill to the Chancellery of the President. The doubts are so serious that nobody is able to say today whether a majority would now be found in PiS to support the President’s bill. This was the direct reason for postponing the Sejm’s session a fortnight ago.

‘I understand the intention of the President, who wants women not to be concerned that they will ever be forced into heroism, because, after all, that is the main concern of a large proportion of society. However, this needs to be formulated properly so as to state unequivocally that, if a lethal case is diagnosed, which poses a real threat to the mother’s health or life, the mother needs to be saved unless she decides to be heroic herself and wants to save the child at all costs,’ emphasises PiS MP Piotr Uściński, one of the co-authors of the petition to the Constitutional Tribunal to examine the existing legislation on abortion for its constitutionality, in an interview with Onet.

As we have already written in Onet, the ruling of the Constitutional Tribunal was received by the ruling camp with an equally great lack of understanding and criticism, and many prominent politicians of the United Right camp began to question the rationality and sense of this decision, to which Jarosław Kaczyński himself had given the green light.

The President also does not fully agree with the ruling of the Constitutional Tribunal, as he expressed in one of his interviews, by which he broke his silence in connection with the protests. ‘I was initially satisfied when there was talk of the ruling of the Constitutional Triubunal. However, I expected the Court to leave time for the regulations to be clarified,’ said Andrzej Duda, emphasising that he was not surprised by the anger and concern of the protesting women.

Members of the ruling camp are informally pressuring the Tribunal

It arises from our findings that, over the past few days, informal reservations about the ruling have been submitted to the Tribunal by politicians in the ruling camp, clearly indicating the need for the judges to leave some leeway for interpretation in the written justification enabling the mitigation of the effects of the ruling by way of an act of law.

‘We can only hope that the justification of the ruling will contain such legal leeway, but we are not certain of this. Otherwise, it will be difficult for us to get out of the political deadlock in which we have found ourselves,’ we hear at the PiS headquarters on ul. Nowgorodzka.

The politicians of the United Right camp who we interviewed are concerned that, if the Tribunal repeats in its written justification precisely the arguments announced during the oral announcement of the ruling, more street protests will break out when the ruling is published in the Official Journal. This is because, as they claim, no law can then change the Tribunal’s tightening up of the abortion laws, unless the constitution itself is changed.

This will also mean a spectacular end to the presidential bill, which will certainly be locked away in the drawer forever.

The conservative fraction in shock

PiS’ large conservative fraction is highly amazed and in disbelief about the President’s proposal and the whole situation regarding the protracted issue of publishing the ruling.

Its members admit in interviews with Onet that they do not understand why the government is blocking this ruling, which was requested by 107 PiS MPs, from entering into force.

PiS MP Piotr Uściński, who co-authored the petition to the Tribunal emphasises in an interview with Onet that he does not understand why the Government Legislation Centre, which, after all, is subordinated to the Prime Minister, is not fulfilling its obligatory duty.

‘I hope this will happen in the near future,’ MP Uściński tells Onet.

In his opinion, ‘the Court’s written justification, which will probably appear in the coming days, cannot deviate from the operative part of the ruling, which overrules eugenic abortion in Poland’.

The whole of the ruling camp is well aware that the publication of the ruling cannot be dragged on indefinitely. PiS Chairman Jarosław Kaczyński, who does not want to start an open war with the Tribunal, where several acts of law that are very important to the PiS party are waiting in line for consideration, is also well aware of this. Among other things, there is the highly publicised amendment to the Act on pensions of the police and other services regarding people who served in those services during socialist times, or the law on the public nature of assets of politicians’ families, which was passed just before the parliamentary elections, which obligates the most important politicians, including the prime minister, ministers, MPs, senators, MEPs, presidents of the National Bank of Poland, the Constitutional Tribunal, the Supreme Administrative Court and the Supreme Court, to provide information on the level of assets of not only their spouse but also their children in a declaration. Politicians are currently only required to present their own assets in a declaration.

To put it simply: PiS needs the judges of the Constitutional Tribunal anointed by the party in power, who are currently in the Tribunal, to continue to rule and carry out its reforms.

‘Nobody intends to ignore the ruling and it will certainly be published shortly,’ admits Radosław Fogiel, PiS’ deputy press officer admits in an interview with Onet. He emphasises that ‘it is important that the publication of the Court’s judgment on such a sensitive matter is comprehensive, together with the justification’.

Silent Tribunal

It is difficult to specify precisely today when the Constitutional Tribunal will issue a written justification of the judgment, which – according to the ruling camp – is the only chance today of getting out of this abortion deadlock. Before publication, Onet asked the Constitutional Tribunal about the date when it can be expected that the judges will issue a written justification of judgment K1/20 of 22 October of this year. Neither this question nor any others about the lack of publication of the judgment by the Government Legislation Centre was answered by the date of publication of this article. The Tribunal is silent.