Topic of the Month
Poland On Strike
On October 22nd Poland’s Constitutional Tribunal ruled that abortions for fetal abnormalities violate the Constitution, effectively imposing a near-total ban on abortion. Tribunal’s president Julia Przyłębska said that allowing abortions in cases of fetal abnormality legalized “eugenic practices with regard to an unborn child, thus denying it the respect and protection of human dignity”. She added that, because the Constitution guarantees a right to life, terminating a pregnancy based on the health of the fetus amounted to “a directly forbidden form of discrimination”. “The Tribunal maintains the position that human life is of value at every stage of development and should be protected,” said the court’s rapporteur, Justyn Piskorski. “A child in the prenatal period of life, as a human being who is entitled to inherent and inalienable dignity, is an entity having the right to life, and the legal system must guarantee the proper protection of this,” he added. The verdict cannot be appealed.
The ruling has changed the so called “abortion compromise” of 1993. After the communist period, during which access to abortion was rather easy, an ordinance of 1990 made access to abortion more difficult. Later, in 1993, the law was further tightened, the “difficult living conditions” were removed as a ground for abortion and it has been generally banned except in the following circumstances: 1. When the woman’s life or health is endangered by the continuation of pregnancy; 2.When the pregnancy is a result of a criminal act, or 3. When there is a high probability of a severe and irreversible fetal impairment. This, one of the strictest abortion laws in Europe, was the “compromise” between the government and the church.
The very word “compromise” used and supported by most of the mainstream parties has been recently challenged by the left, progressives and women’s rights groups. Not only because they believe that the state should not compromise anything with bishops, but also because even this very conservative law is not executed properly. Doctors have been refusing the procedure because it conflicted with their faith. Hospitals have been turning away women seeking legal abortions. There are entire regions with not a single hospital that offers the procedure and women are often tricked to be deprived from their rights and forced to give a birth.
Regardless these harsh circumstances, PiS and the catholic church have been pushing for years to limit rights to abortion for Polish women even more. In 2016 a group of PiS MPs supported a bill on total abortion ban. A draft law came from an anti-abortion citizens’ initiative that gathered almost half a million signatures. According to the amendment, women found to have had abortions would be punished with a five-year prison term, and doctors found to have assisted in an abortion would also be liable for jail time. Thousands of women marched through the streets of Polish cities and towns wearing black as a sign of mourning for their reproductive rights. Many of them were PiS voters, furious about this proposal. The government panicked and eventually rejected the initiative.
But the church was not happy and in 2018 it demanded again to restrict the law. This time the government revised the legislation to make it “less radical”, including dropping criminal penalties for women who have abortions. Women again went to protest. Ca. 200 NGOs wrote together a public appeal to PiS, saying the bill would “place women’s health and lives at risk and violate Poland’s international human rights obligations.” The Office of the United Nations High Commissioner for Human Rights and many other international bodies have also condemned the proposed law. Under the pressure, PiS stepped back again.
In pursuit of abortion ban Jarosław Kaczyński decided to use another method. Instead of opening another debate in the parliament, Polish ultra-conservatives decided to change the law in the Constitutional Tribunal. The same Tribunal that was politicized and lost its independence in 2015 and 2016, what provoked mass demonstrations and launch of the EU Article 7 procedure. Today the Tribunal is dominated by PiS-appointed, conservative and loyal judges (11 out of 12) and led by Julia Przyłębska, wife of PiS ambassador to Germany and Kaczyński’s friend, thankful for unexpected promotion in the judicial world. The Tribunal is treated by the opposition and independent institutions as another branch of PiS. In December 2019, a group of 119 MPs, mostly from PiS and far-right Confederation, submitted a request to the Tribunal to assess whether abortion carried out due to serious and irreversible birth defects contravenes four constitutional principles: human dignity, the right to life, the prohibition of discrimination, and the democratic rule of law. “I would really like this kind of abortion to be at least restricted to the most extreme cases,” Jarosław Kaczyński declared.
The decision of the Tribunal equals almost full abortion ban in Poland. Some 98% of the ca. 1.100 legal abortions that take place in Poland each year are carried out due to foetal abnormalities. It is estimated that over 100.000 abortions are carried by Polish women every year illegally, in the underground, and in neighboring countries– such as Germany and Slovakia.
The new ruling was welcomed by the church and PiS politicians. “We are pleased that the Constitutional Tribunal has taken the side of life,” said Andrzej Duda’s spokesman, Błażej Spychalski, said. Marek Jędraszewski, the archbishop of Kraków, said the judges had made a courageous decision to defend human life “from the moment of conception to the [moment of] natural death”.
On the other side, the opposition tears the ruling to shreds. For example, Adam Szłapka, leader of the liberal Nowoczesna party, said that “The pseudo-tribunal sentenced Polish women and cooked hell for them. Jarosław Kaczyński will pay for that”. Dunja Mijatovic, the human rights commissioner of the Council of Europe, tweeted: “Today’s ruling of the Constitutional Court means underground/abroad abortions for those who can afford & even greater ordeal for all others”. In a joint statement ahead of the Tribunal’s sitting, the Center for Reproductive Rights, and Human Rights Watch and AI said they would be sending “independent expert monitors” to Poland bearing in mind their “longstanding concern about the human rights of women and girls”.
Women’s rights organizations warned that the decision would in many cases force women to give birth to terminally ill children and will “legalize torture through the back door”. One of them, Women’s Strike, started organizing protests all over Poland. Already during the day of the Tribunal’s announcement, many gathered in front of the parliament. People have been protesting everyday at various locations in Warsaw. On Friday, October 30th, 150.000 gathered in the center of the Poland’s capital city; demonstrations across the country drew an estimated 800.000 participants. Foreign media, including CNN, commented that demonstrations of this scale were last seen during times of the Solidarity movement in the 1980s. Others compared the demonstrations to the 1968 movement. This is mostly due to the engagement of the youth, socially radical postulates and sharp language.
The majority of the protesters are indeed young and very young. For the first time since PiS came to power, big groups of high-school students went on the streets and flooded social media. Young people have never supported any of the post-1989 political causes so visibly like now. Many of them cannot even vote yet, but they will be able to do so in next elections. Some of them may support the feminist movement organized around Women’s Strike and its leader Marta Lempart. Lempart demands not only annulment of the Tribunal’s ruling, but also liberalization of the abortion law. More even, she admitted that for the government to back down on abortion would only be the beginning: “The revolution which has begun is not just about abortion. It’s a struggle for freedom which has brutally been taken from us, and abortion is just a symbol”. Lempart wants a “secular state with human rights and freedom for all. All this may happen later, though it would be better if it happened now”. She stressed that the next majority in Sejm should “legalize abortion, bring in marriage equality and many other things”.She vigorously criticized those politicians who support the protests but not share fully her political agenda.
Lempart also supports the radical language of the street. For the first time in Poland, peaceful protesters use very vulgar slogans. “Wypierdalać” (“Fuck off”) has become the slogan of the demonstrations, who say that PiS crossed the ultimate line and they won’t be polite anymore (“We were nice when they demolished the courts, now it’s too late”). The “f word” is chanted in front of the parliament, the Tribunal, offices of right-wing MPs, but also Kaczyński’s house in Warsaw or Przyłębska’s residence in Berlin. All over the world Polish diaspora shows their support for women’s rights under the symbol of 8 starts (“***** ***”, standing for “fuck PiS”).
One more border that was crossed is the fact that protesters ruthlessly attacked the church. Top archbishops were not only insulted verbally, some protesters have even entered churches, disrupting services. For example in Poznań a dozen or so women chanted in the cathedral “we are sick of this”. Some staged sit-ins holding pro-abortion banners. It was something unimaginable in ultra-catholic Poland before. It seems that the church has irretrievably lost its special, untouchable, position in the Polish society. In eyes of many Poles, the church is not holy any longer, but it’s rich, evil and cruel.
Of course, the government uses the protests in churches (that were organized only in 20 or so locations) in its anti-opposition propaganda. State-owned TVP pictures Women’s Strike as a dangerous and satanistic (sic!) movement. They also stress that the protesters are young and don’t know what they are doing. Jarosław Kaczyński has been especially dramatic in his criticism and called on his followers to “defend Polish churches at any price”, underlying that only PiS represents real Polish identity. As an aftermath, members of extreme right organizations and football hooligans formed voluntary groups to “protect” church buildings. Some of them took Kaczyński’s words very seriously and started physically attacking women on the streets. Such incidents happened, among others, in Wrocław, were activists and journalists were bitten up.
PiS is also doing everything to prove that the demonstrations are responsible for the Covid-19 crisis. On the day of the biggest demonstration in Warsaw, health ministry reported a record 21.629 new infections. Ina fact, the government lost any control over the situation and is under criticism from all sides about its inefficiency in its fight against the pandemic. In response, prime minister Morawiecki limited size of any gatherings to five people. In other words, PiS effectively made any public meetings illegal. But Women’s Strike says that they use the right for “spontaneous protests”. High officials of the government and of the PiS-controlled prosecutor’s office declared that protest organizers should be punished with up to 8 years of prison. In Olsztyn police arrested a 14-year-old girl for organizing an illegal gathering. The schoolgirl came to the demonstration with her grandma…
What really bothers PiS is that the protests take place not only in Warsaw and big cities, but also in smaller towns, including those where PiS has always been winning. Moreover, in many locations women rights activists are supported by protesting farmers or taxi drivers. PiS is losing in all opinion polls. In a survey for the radio RMF FM the governing party lost 10pp. It has now 30,9% and would lose the majority in the Sejm. Civic Platform (25,3%) and Poland2050 (14,7%) could create a new government. Moreover, 70% of Poles, including 40% of PiS voters, believes that Jarosław Kaczyński should leave his position of a party leader.
But what’s next? Opinion polls suggest that 45-50% of Poles prefer to keep the existing law. Only 10-15% favor further restricting it, while around 30-40% want it to be liberalized. There is a few options on the table. President Duda has suggested a new “compromise law”. But this would be a “compromise” between the 1993 law and the Tribunal’s ruling – something more conservative that Poland has now, and protesters demand a liberal change. Moreover, such law equals de-legitimization of the Tribunal, as its rulings should be final and can’t be changed by regular bills. Another solution, that also goes against the Tribunal’s authority, could be a prime minister’s decision not to publish the ruling in the official gazette. Some politicians suggest a referendum on abortion and independent lawyers believe it’s a good moment to do away with the politicized Tribunal, remove illegally appointed judges and create a new body.
Marta Lempart says: “We’re prepared to fight till the end.” New protests will block Polish cities today, tomorrow, the day after tomorrow…
Still Waiting for the Peak
Poland is facing a spike in infections, with the latest record in daily cases – almost 27.000 new infections reported on November 5th. “The situation is serious and today the prime minister will announce further restrictions, decisions that would limit our functioning, the number of social contacts,” prime minister’s chief of staff Michał Dworczyk said.
The country is running out of hospital beds, ventilators, oxygen and medics. The National Stadium has been transformed into a temporary field hospital. It will have capacity for 500 patients.
Although the entire territory of Poland was included in the so-called red zone a week ago, this did not prove enough to slow down the disease, the authorities explained. The continued social interactions and mobility are among the main reasons to blame, according to officials.
From November 9th the distance learning mode extends to also include primary school students (1-3 graders). Cultural institutions such as theatres, museums, cinemas, galleries will also close doors as early as November 7th; the same goes for hotels – they will only be able to accept guests on business trips. The number of people in commercial establishments and in churches is also further reduced.
Furthermore, the existing security measures are extended until November 29th. They include the need to accompany children under 16 on weekdays, the suspension of the operations of swimming pools, aquaparks and gyms. Similarly, sport events will continue without an audience, while mass events and gatherings of more than 5 people are banned.
Rafał Trzaskowski, mayor of Warsaw and runner-up of the 2020 presidential elections, finally, after weeks of silence, launched his movement. It was named “Common Poland” (Wpólna Polska). “We are inaugurating a movement that aims for Poland, where the end never justifies the means, where the law is the foundation of the state’s actions, the law always comes first, even if it is against the interests of the authorities, where everyone, regardless of nationality, religion, political views, origin or sexual orientation, has the same rights,” Trzaskowski said.
Mayor of Warsaw is trying to capitalize on over 10 million votes he won a few months ago and build a new pillar of the democratic opposition. Common Poland is not supposed to be a party, but a movement created to coordinate work of local leaders, including many popular mayors, and NGO activists who want to follow Trzaskowski’s lead but are not interested in supporting Civic Platform (Trzaskowski himself is a deputy chairman of Civic Platform).
Trzaskowski also announced that a new trade union, called “New Solidarity”, will be created. Its name refers to the legendary union that overthrew communist regime in Poland. It will represent self-employed people and those working on insecure so-called “junk contracts”. “These are often the people who work the hardest in Poland, they are often the most creative Poles,” he stressed. But they still lack representation, while “those in power want to reach into their pockets”.
PiS immediately tried to discredit the new initiative. Michał Dworczyk, called it – referring to the sewage plant breakdown in Warsaw – “paradoxical that a man who is responsible for an ecological disaster and who for 12 months failed to repair the pipe” is “instructing everyone on how to manage a crisis”. A very interesting dynamics will be observed now between Common Poland and Poland2050. The latter one is a new party created by Szymon Hołownia, a TV celebrity who was third in the presidential race, and now occupies third position in party polls (with 10-15%). Hołownia was seen as a dark horse of the first round of the election and was expected to meet Andrzej Duda in the second round. But he lost his position when Trzaskowski entered the race. Will his movement also lose now?
Triangle’s Come Back
France’s minister for Europe and foreign affairs Jean-Yves Le Drian hosted his German and Polish counterparts, Heiko Maas and Zbigniew Rau, for a meeting of the Weimar Triangle, a forum for discussion and cooperation between France, Germany and Poland since 1991. They discussed several European and international issues, in particular European coordination in connection with the Covid-19 epidemic, the situation in the Eastern EU with the crisis in Belarus and the Armenian-Azerbaijani conflict, tensions in the eastern Mediterranean and the situation in Libya. They also addressed the recovery plan and the European Commission’s Pact on Migration and Asylum.
The ministers adopted a joint declaration, expressing deep concern over the situation in Belarus, the conflict in Nagorno-Karabakh, the occupation of Crimea and the poisoning of Alexei Navalny. Regarding Belarus, they have called for holding new elections. “Our three countries strongly condemn the violence by the Belarusian authorities and the arbitrary arrests following the presidential election, the results of which they do not recognize. They call for a new free and fair elections, in accordance with international standards and in presence of OSCE/ODHIR observers, without outside interference,” the declaration says.
Le Drian, Maas and Rau highlighted the need for a return of balance to economic relations with China but at the same time expressed concern at the state of human rights in that country, including the situation in Hong Kong and the treatment of ethnic and religious minorities. “Confirming the role of NATO as the basis of collective security of the Alliance in the Euro-Atlantic area, our three countries underscore the importance of further building a strong Common EU Security and Defence Policy,” the statement reads.
Risk of Paralysis
The Venice Commission is concerned by the risk of paralysis of the Ombudsman institution in Poland. The term of the Ombudsman Adam Bodnar ended in September, however, the parliament hasn’t chosen his successor yet (read more in the previous issue of the Newsletter).
“A situation in which the institution of the Human Rights Defender will not be able to fully and effectively function until a new Ombudsman is elected by the parliament, would have a significant negative impact on the protection of the rights of Polish citizens and all people living in Poland,” the statement of the Venice Commission reads.
“Charlatan”, Agnieszka Holland’s newest film, was selected as the Czech candidate for the Academy Award. The picture shot in the Czech Republic with Czech actors is based on the true story of healer Jan Mikolášek, who lived from 1887 to 1973. It premiered in the Berlinale Special Gala section of the Berlin Film Festival. Holland told Variety magazine: “Charlatan tells the story of Mikolášek’s rise and fall. Of his moral fall and of his constant fight with the darkness inside him. It is the story of the mystery of a man, of the mystery of his special gift, of the prize he was ready to pay for it; the story of the paradox of strength and weakness, of love and hate”.
Holland is one of Poland’s best-know film directors abroad. Her 1990 film “Europa, Europa”, a historical drama set in Germany, Poland and the Soviet Union during the World War II, won the Golden Globe Award for Best Foreign Language Film and was nominated for an Oscar for the Best Adapted Screenplay. Two other films of hers were nominated for an Oscar for the Best Foreign Language Film: “Angry Harvest” represented West Germany in 1985, and “In Darkness” represented Poland in 2011.
“Never gonna snow again” directed by Małgorzata Szumowska and Michał Englert has been announced as the Polish candidate for Oscars 2021.
Watch the teaser: https://www.youtube.com/watch?v=u0C_dh8iZOA
Poland and Germany
Thoughts and Observations on Media Freedom
After the PiS government declared it is going to “repolonize” media, the US and German ambassadors to Poland, respectively Georgette Mosbacher and Arndt Freytag von Loringhoven (read more about his appointment in the September issue of the Newsletter), have met to discuss the freedom of press. Freytag von Loringhoven tweeted: “The topics of our conversation were transatlantic relations, the Three Seas Initiative, and media freedom in Poland”. PiS wants to reduce foreign ownership of media outlets in Poland, mostly by American and German corporations. “Repolonization” should prevent single companies from owning a large number of different titles.
“Germany can react very aggressively to the issue of media deconcentration in Poland because it controls a significant part of the media market in our country and through that it can support pro-German opposition candidates in elections,” commented secretary of state in the PM´s office Adam Andruszkiewicz, former member of the extreme right movement. Polish deputy foreign minister Szymon Szynkowski vel Sęk said he agreed that “media freedom is a foundation of the democratic state” and added that he would like to “share with you, Mr. Ambassador, my thoughts and observations on media freedom and pluralism in Germany”.
PiS has been talking about “repolonization”, known also as deconcentration, of media since 2015 but has never presented any corresponding legislative proposal, mostly due to a very clear objection from the White House. American Discovery corporation owns Poland’s biggest private television channel TVN, whose news channel tvn24 is the most popular and influential in the country.
The government is looking for other, extra-legislative mechanisms to reach its goal. For example, recently the media reported that Polish oil giant Orlen negotiates with German Verlagsgruppe Passau over buying its Polish branch, Polska Press, which owns 20 out of 24 regional daily newspapers in Poland and many local weekly magazines and websites.
“Repolonization” has only one aim, namely to extend PiS’s propaganda. If this plan comes to fruition, Poland will fall in media freedom rankings even more (currently it occupies its lowest position ever in the World Press Freedom Index).
PiS officials called for resignation of German MEP Katarina Barley (SPD), who is also one of the vice-presidents of the European Parliament. According to media reports, Barley said in a radio interview: “The rule of law is constantly broken and EU funds are an efficient way to exact pressure. States such as Poland and Hungary must be financially starved. Funds are an efficient lever.”
Ryszard Legutko, leader of the PiS delegation in the EP, called for immediate replacement of Barley as EP vice-president in a letter addressed to the president of the European parliament David Sassoli. He underlined that the German term aushungern (to starve), used by Barley in the interview “amounts to a provocative humiliation of the Polish and Hungarian nations who have a vivid memory of starvation”. “A German is calling for the starvation of Hungary and Poland. No illusions remain. The fight for the rule of law is not meant to improve legislation in the EU. It is an ideological weapon against conservative governments,” added Witold Waszczykowski, MEP, former Polish minister of foreign affairs. Even Mateusz Morawiecki spoke on the interview calling it a “reprehensible” and “diplomatic scandal”.
A detailed transcript of the interview published by the station showed that German MEP’s words had been a little different. While she had called for the EU to take a stronger action against Hungary and Poland due the judicial reforms of governments of Fidesz and PiS, she had only used the words “financially starve” in reference specifically to Viktor Orbán. Barley confirmed this version in an interview with Gazeta Wyborcza.
On October 1st, the new “Uber law” came into force in Poland. According to the new regulation, drivers will need to have taxi licenses, just like regular taxi drivers, roof signs, meters and card readers. The companies which operate the apps will have to pay local taxes, not just the drivers themselves. The latter ones will need to pass a medical examination and a vehicle check, but do not need to pass an exam on the topography of cities (which was previously required for taxi drivers). All cars will have to be registered.
This will apply not only to Uber but also to a number of similar companies, like Bolt, iTaxi and FreeNow, that are extremely popular in Polish cities, especially among the young people due to their affordability. All the companies declared that under the new law they would have to reduce the number of drivers and rise prices of their services, what – according to them – would reduce taxes paid. These taxes are estimated for ca. PLN 1,7 million, or EUR 0,4 million, in 2017 – that is more than any taxi company pays but still very low.
The legislation is a victory of licensed taxi drivers, who protested during various occasions in 2018. Their cost of operation (taxes and social security) were significantly higher than those of ride-hailing apps and they have been losing the market competition against Uber and others. Often, intermediaries working with ride companies were additionally creating special schemes under which foreign drivers were “volunteers” and received only “pocket money” instead of salaries, or where paid under the table.
3 Million Money Per Day
According to the State Agency for the Prevention of Alcohol-Related Problems (PARPA), in 2019 Poles drank a record amount of alcohol. PARPA suggests that this increase is partly caused by the growing popularity of small bottles of vodka and other hard liquor, known in Poland as monkeys (małpka; 100-200 ml), sold for peanuts (prices start from EUR 1) in almost all shops and gas stations around the country. Every day some 3 million of such bottles are sold in Poland. 1/3 of them are sold before noon on weekdays! Small bottles help hide alcohol consumption to many people.
Poles on average drank 9,78 liters of pure alcohol each in 2019. That breaks the previous record of 9,67, set in 2013. Last year’s increase has largely been driven by hard liquor, which average annual consumption increased to 3,7 liters of pure alcohol, up from 3,3 in 2018. Average wine consumption also went up from 6,0 to 6,2 liters. Surprisingly, the amount of beer consumed dropped to 97,1 liters in 2019 from 100,5 liters in the previous year.
Covid-19 crisis and lockdown contributed to a small decrease in purchases of the smallest bottles, but the number of big bottles of spirit sold in Poland increased by 5%.
The Queen is Born
Iga Świątek made history by becoming the first Polish player to win a Grand Slam title at the French Open as the unseeded 19-year-old completed her dominant run at Roland Garros by sweeping American Sofia Kenin in straight sets. As the 54th-ranked player, she was the second lowest-ranked woman to reach the final in Paris since 1975, when the WTA rankings were introduced. With this victory, the young player earned 1.760 ranking points and jumped 37 positions to become World #17.
“I didn’t really care if I’m going to lose or win,” Świątek said after the match. “I think the main key was just keeping my expectations low.”
Poland became crazy about Świątek. Media have been celebrating her victory and crowing her as the new Poland’s queen of sports. “It’s been crazy in Poland,” she admitted. “I’ve had loads of media coverage, I’ve been on TV Shows and on Wednesday I was on air from 9am to 9pm!”
Shortly after winning Grand Slam, Świątek had to quarantine for two weeks after being in contact with president Andrzej Duda, who was subsequently tested positive for Covid-19.
Polls & Trends
IBRiS for Onet.pl, 03.11.2020
Law and Justice (PiS) 28,7%
Civic Coalition (KO) 24,7%
Polish People’s Party (PSL) 5,1%
Women’s Rights Protests
United Surveys for RMF FM, 04.11.2020
What is your attitude towards the street protests after the abortion ban ruling?
Very much in favor 50,5%
Rather in favor 16,1%
Rather against 9,1%
Very much against 18,4%
What should the government and PiS do?
Try to comply with protesters’ demands 67,2%
Wait until the protests stop 14,9%
End the protests by force 6%
Miłosz is an expert at the Nowoczesna party. PhD, formerly a part-time teacher at Reykjavik University School of Law. His main areas of interest are comparative constitutional law and federalism. Board member of Projekt: Polska Association. Until September 2015, he worked as an expert within “Presidential Experts’ Programme” at the Chancellery of the President of the Republic of Poland. He is member of the Board of Directors of the European Liberal Forum.