by Ralph Keller
The right-conservative and right-populist party, Prawo i Sprawiedliwość – PiS, won the majority of seats in Poland’s parliament, and hence got the majority in government, on 25 October 2015. Since then, PiS, meaning Law and Justice, has been on a rampage against individual freedoms, causing the European Commission stepping in. Lech Wałęsa denounced the PiS-led government, saying it is even more “perfidious” than the communist government he helped to topple.
Massive street protests have slowed down the PiS charges. The following is an overview with commentary that focuses on the tenure of judges on Poland’s high court and the country’s abortion law. I also briefly discuss other attempts to shape Poland in PiS’ image.
Poland’s Abortion Law
Abortion had been legalised in 1956 in cases where the woman experienced “difficult living conditions”, with the interpretation of the law being changed to ‘upon request’ during the 1970s. Abortion was generally legal in Poland until 1993, but since then is only legal in cases of medical risk to the mother or danger to the foetus, or if the pregnancy results from a crime.
The PiS-led government recently attempted to make the country’s abortion law even more restrictive, with a new law proposed in 2016 that was intended to (i) outlaw abortion even in cases where the pregnancy was the result of rape or incest, and (ii) outlaw abortions of foetuses with congenital disorders. If the right-conservative government had managed to push the bill through, abortions in Poland would have been legal only in cases where the life of the pregnant mother is at risk.
The government eventually abandoned that plan after sustained nation-wide resistance that became known as Black Protest (1, 2, 3), at which women dressed in black voiced their anger and frustration while demanding “we want legal abortions”.
These protests forced a decisive defeat of PiS in parliament on the issue. On October 6, 2016, 352 MPs voted against the bill, while only 58 voted for it, and 18 abstained.
This should have been the end of the matter, but the right-conservative government kept at it, proposing an amended bill that would, like the previous one, make abortion illegal in cases where the foetus has a congenital disorder. Abortion would remain legal—as it has been since 1993—in case of medical risk to the mother, or where the pregnancy resulted from a crime. So ordinary people keep protesting and marching nationwide, with slogans including “free choice” and “a woman is a human being”. The protests are ongoing because the bill is still in parliament, where it is tabled.
What motivates PiS? My view is that the PiS and its government, in terms of human reproduction, promote extremist views because the country that is strongly influenced by Roman Catholicism. But the street protests clearly show that ordinary women (and men) fight back, acting in their own interests to emancipate themselves, and they demand the right of self-determination. These protests show that people refuse to be dominated by religious views around human reproduction. Importantly, the resistance can be successful, as the defeat of the previous bill has shown.
The appendix below provides an overview of legal practices in selected countries.
Appointment of Judges to the Supreme Court
Shortly after PiS won the general election in 2015, the government tried to interfere with the appointment of judges to the Polish supreme court, by trying to appoint all judges of PiS’ choosing. Critics are concerned that the government is trying to neuter the courts. This issue also brought tens of thousands to the streets in nation-wide protests. Slogans heard were “stop the attack on democracy”, “defend democracy”, “we defend the constitution”, “no to dictatorship”, “no Belarus in Warsaw”; or “we want a veto” and “free courts”. The protests were allegedly the largest since 1989, yet the response from Jarosław Kaczyński, head of PiS, sounded like Trump on Twitter: Kaczyński called the protesters “traitors of the fatherland”. But people kept marching, undeterred by these childish outcries, and Poland’s president, Andrzej Duda, refused to sign off on the new law on 18 July 2017.
This refusal was partly the result of resistance from the streets, and partly the result of pressure from Brussels, which had been monitoring Poland as a statutory EU member. The European Commission then initiated formal infringements proceedings over measures affecting the judiciary on 29 July 2017, in accordance with Article 7 of The Treaty of the European Union, for the violation of “common values”. The commission took particular issue with: (i) gender discrimination because the new law would enforce different retirement ages for male (65) and female (60) judges—Poland’s constitution specifies the age of 70 for either gender; and (ii) the Minister of Justice being granted discretion to prolong the mandate of judges who have reached retirement age, and being granted discretion over the appointment of Court Presidents. The European Commission took the view that the ministerial powers would undermine the independence of Polish courts.
The PiS-led government issued an informal statement in response to the EC proceeding, claiming that “social policy and judicial organisation belong to the powers of member states”. Nevertheless, President Duda signed the bill into law on July 26, 2018, which triggered a lawsuit by the European Commission against Poland in the European Court of Justice. Poland’s government eventually gave in and stopped the forced retirement of Supreme Court judges in November 2018.
In my opinion, the motivation behind PiS’ attempts to tinker with the appointment of judges is a not-so-subtle attempt to interpret Poland’s laws in favour of the right-conservative and right-populist government. This conclusion is supported by the alarming fact that the lower retirement age effectively retires 40% of the Supreme Court bench! The European Commission’s “infringement proceedings” therefore support the protesters in Poland who fight for a democratic and modern country.
Other Attempts to Shape Poland in PiS’ Image
Being on the rampage against Poland’s abortion law and the appointment of supreme court judges have not been the only PiS attempts to change the law. For example, the government also tried to introduce laws that restrict the work of journalists inside parliament, which triggered a blockade of the parliament building by 2,000 protesters, on December 18, 2016. Then Prime Minister Beata Szydło called these protests “scandalous” and blamed the opposition parties for the incidents. Minister of the Interior Mariusz Błaszczak accused the opposition of attempting to take over power. These are examples of how touchy a government may react in light of street resistance which stops a government from getting its way.
On February 6, 2018, President Duda said that he would sign into law the “Holocaust bill”, making it illegal (i) to accuse the Polish nation of complicity in the Holocaust and other Nazi atrocities, and (ii) to refer to concentration camps as “Polish death camps”. This uninhibited show of PiS’ true colours has, unsurprisingly, caused tensions with the US and Israel. Besides, if it were effective, it would be a first in history where a ban on discussing an issue made that issue go away.
The mass protests have shown that the PiS-led government cannot claim that Poland is a democracy. Instead, the new trump-card now seems to be the “rule of law”. Yet the street protests have posed the question of what law, whose justice? Many Poles clearly and openly oppose the Law and Justice party, which has plunged Poland into a deep political crisis. The street resistance against the party’s laws, and the party’s justice, forced Prime Minister Beata Szydło to resign on December 11, 2017. This is a massive success for the protestors who refuse to be dominated by right-conservatives and right-populists, and who instead fight for the right to self-domination in a democratic Poland.
It is, however, important to note that PiS did not fall from the sky. The party’s rise to power is the result of frustration, anger and disappointment among the party’s supporters with capitalism’s inability to deal with the conflicts and contradictions built into the capitalist mode of production. This is not a phenomenon confined to Poland, but is a global issue. Only a complete uprooting of this mode of production, and putting in place a new mode based on freely-associated labour, will permanently remove the causes of recurrent unrest.
Appendix: Abortion Laws in Selected Countries
The former Soviet Union had legalised abortion in 1920 with restrictions, i.e., the procedure had to be performed in state hospitals by specially-licensed doctors. Abortions were legalised more broadly in 1955.
Abortion in the former GDR was legalised in 1972, provided the procedure was performed by a doctor during the first 12 weeks of pregnancy. An extension of the time limit was allowed in the case of medical risk. This law aimed to protect the unborn life, by balancing the right to self-determination with the protection of the foetus from week 12. Abortion is illegal in principle in today’s Germany, but has, effectively, been legal since 1976, provided that: (i) the procedure takes place within 14 weeks upon request, or following a crime; (ii) the abortion is indicated because of medical risk, in which case the law does not impose a time limit. The law still aims to protect the unborn life by imposing the 14 week limit.
In the UK, abortion is legal until week 24, and in the US, while the child is unable to live outside the womb (generally the third trimester, but individual states may and do impose many restrictions). These more generous time limits, which place a higher emphasis on the self-determination of women, were hard fought-for, but are now threatened by a Trump-stocked Supreme Court.