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Populist Constitutionalism at its best

On 22. October 2020, the Polish Constitutional Court (Trybunał Konstytucyjny) announced a judgement that will lead to an almost total ban of legal abortions. The ruling has sparked social outrage and a series of large protests in several Polish cities. But how come the Constitutional Court, instead of Parliament itself, could decide on this significant matter? What’s left of the legitimacy and role of the Polish Constitutional Court after the major transformations it has undergone since 2015? And will it be possible to repeal the judgment in front of an international court? A historical recap and legal analysis of a constitutional crisis.

By Kristina Scibor

© Nora Hüttig.

In its decision, the Court held that the third of three statutory exceptions in the Polish statute on abortions from 1993 in which an abortion is legal in Poland, namely when prenatal tests or other medical indications suggest a high probability of severe and irreversible foetal harm or an incurable life-threatening disease, is incompatible with the Polish Constitution’s standard for the protection of life and human dignity. The matter was brought in front of the tribunal by 119 Members of the Polish Parliament (the Sejm) from the ruling Law and Justice Party (Prawo i Sprawiedliwość, short PiS) and two far-right conservative parties. The ruling, which is expected to be quickly cast into parliamentary statute, thus makes about 98% of current abortions in Poland illegal (in 2019 for instance, 1074 of 1100 legal abortions in Poland were carried out on the basis of this third exception). Abortions will only be legal in cases where the pregnancy resulted from rape or when the pregnancy threatens the life or health of the pregnant woman. This means that Polish women and doctors must fear prosecution for carrying out abortions, and that many more illegal and dangerous abortions will be carried out secretly if women cannot afford to go abroad.

Looking back – how did we get here?

The Constitutional Court was the first target in the PiS Party’s takeover of the country’s justice system. Since PiS came to power in the 2015 Parliamentary elections, it has replaced all but one of the judges on the court’s bench with new, party-aligned, judges, several of them being former PiS politicians. It has managed doing so through a series of intricate parliamentary bills and resolutions that both aimed at replacing unwanted judges as well as reforming the Code of the Constitutional Court which made the Court’s day-to-day decision-making much more arduous (see a detailed analysis here).

Within weeks after the 2015 Elections, the new Parliamentary majority elected five new judges, including an unconstitutional appointment of three judges whose positions had already been lawfully filled by the previous parliament (so-called “doubles”). A long fight ensued between the executive and the Constitutional Tribunal during 2015 and 2016. While the Court declared the new judge appointments and several reforms to its procedural code to be unconstitutional, the government repeatedly refused to publish the Court’s decisions. In some instances, the Court was simply boycotted by both state executives and PiS-appointed judges so as to hinder its decision-making. Finally, on 21. December 2016, President Duda appointed a new president of the Court after the end of president Andrzej Rzepliński’s term under disregard of the applicable procedural rules. Under the rule of “president” Julia Przyłębska, the three “doubles” have been allowed to rule on the bench. The Constitutional Court’s judgements from 2015-2016 were removed from the Court’s website. And, under new procedural rules, “president” Przyłębska is able to arbitrarily assign judges to cases, making it easy to assign politically aligned judges to cases of political interest.

The Polish people are now, since 2017, left with a Constitutional Court that was unconstitutionally “captured" and is under the direct influence of the ruling party. Neither opinions by the Venice Commission nor the invocation of Art. 7 TEU proceedings by the European Commission were able to bring this development to a halt. The number of cases referred to the Court has dropped rapidly, making the erosion of a once trusted institution obvious. What was once a respected third power of the state, a keeper of checks and balances and the rule of law, has become an instrument of the executive and ruling PiS Party, and that in two ways: On the one hand, the court won’t hinder the party’s executive and legislative actions by declaring them unconstitutional. On the other hand, as with its newest judgment, the court can act as an additional rule-maker and make changes to the law possible without seeking parliamentary participation. The court has thus become a well-working instrument within the scheme of so-called “populist constitutionalism”. It carries a crucial role as a keeper of the status quo as well as an enabling institution for political change. In the current case of banning legal abortions, the right-wing majority in Parliament was able to avoid a process of parliamentary and public discussion on a matter of medical expertise and moral judgement (seeing that the majority of the population did not prefer a change of the abortion rules from 1993) by referring it directly to the Constitutional Court.

Looking forward - can relief be sought in front of international courts?

Looking forward now, is it possible to repeal the ruling of 22. October?

As a first option, a preliminary opinion of the Court of Justice of the European Union (CJEU) could be sought by a Polish national court as per Art. 276 TFEU. However, seeing that judicial reforms since 2016 have widened the government’s influence on both lower courts and the Supreme Court, a referral to the CJEU seems highly unlikely.

Another option under EU law would be the invocation of an infringement procedure as per Art. 258 TFEU by another EU member state or the European Commission. Past infringement procedures against Polish judicial reforms have been successful. However, in an unprecedented case as the present, the Commission’s political appetite for starting a new infringement procedure is sure to be rather small.

This is also due to the fact that the CJEU would most likely align its judgement to the jurisprudence of the European Court of Human Rights (ECtHR) in Straßbourg (as is generally prescribed as per Art. 52 (3) of the European Charter of Fundamental Rights). This takes us to the third possible option to appeal against the recent judgement, which is an appeal to the ECtHR. An individual application under Art. 34 of the European Convention on Human Rights (ECHR) could be brought, for instance, by a person who might be prosecuted under a new abortion statute.

The ECtHR does not, however, have a history of intervening in state legislation in such cases. In 2010, it was faced with the case A., B. and C. v. Ireland, which was filed by three women who had travelled to England to have an abortion because they believed they would not be allowed to have one in Ireland. Irish law only allowed abortions if the pregnancy poses a risk to the pregnant person’s life.

The Court did not accept complaints under Art. 3 ECHR, but under Art. 8 ECHR, which is the pregnant person’s right to respect for private and family life. Said right can be restricted on the grounds of the protection of morals (i.e. a legitimate aim). First, the Court held that according to a 1989 referendum, the majority of Irish people did find abortions to be unmoral (the Court however disregarded newer surveys showing a change in people’s attitudes) and therefore the protection of morals could be a legitimate aim.

Next, in the course of weighing the pregnant person’s right resulting from Art. 8 ECHR against the right to life of the unborn (Art. 2 ECHR), the ECtHR allowed a generally wide margin of appreciation to the Irish state. It did not, as per usual, narrow down the margin of appreciation due to the existence of a relevant consensus between European states. The Court acknowledged that there is a large consensus between the majority of contracting states to the ECHR towards allowing abortion on broader grounds than accorded under Irish law. Such consensus did, however, not exist on the scientific and legal definition of the beginning of life itself. The Court, therefore, held that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Art. 2 ECHR. States are accorded a wide margin of appreciation in this question. This, according to the Court, also translates into a wide margin of appreciation as to how a state balances the conflicting rights of the mother. Long story short – the Court awarded a wide margin of appreciation to the Irish state and thus, did not conclude that Art. 8 ECHR was violated.

What does this mean for Polish abortion law? While an individual application to the ECtHR is possible, chances for success are narrow. Applicants would have to convince the Court that the protection of morals is not a legitimate aim to restrict Art. 8 ECHR in this instance, by showing that the majority of Polish people does not deem abortions immoral when they’re due to foetal harm. Further, the unusual approach to the margin of appreciation doctrine in A., B. and C. v. Ireland is, though criticisable (see further here), not very likely to be overruled in a new case, as the ECtHR does commonly refer to its own case-law as precedent.

Therefore, political change through democratic means seems to be the only viable option left.

Looking beyond boarders

The Polish example shows what the results of successful “populist constitutionalism” look like. It also shows what could be awaiting in other parts of the world. Looking over the pond, for example, we see that the US Senate just appointed Amy Cony Barret as the sixth conservative judge on the US Supreme Court, leading to a conservative “super-majority”. Fears over a repeal of the landmark judgement Roe v. Wade, in which the Supreme Court recognized a constitutional right to abortion, are not unfounded, seeing that the nomination of Ms. Barret marks the success of a decade-long campaign from right-wing powers to achieve a majority of conservative judges on the bench. The use of judicial institutions to political ends has turned into a wide-spread phenomenon. More institutions will change from protectors of checks and balances and minority rights into drivers of certain political objectives. No matter in which political direction, the erosion of respected constitutional institutions due to any form of unduly political influence is deeply regrettable.

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