Introduction

In this article we compare the provisions of the old and new constitutions and discuss constitutional issues concerning gender equality. Although the old constitution was not directly used in courts, there are several Constitutional Court verdicts which concern gender issues. There is hope that the new constitution will be not only a piece of paper and list of declarations which are not enforceable, like the old one was most of the time, but a real tool to execute women’s human rights. The Women’s Rights Center plans to develop a model anti-discrimination case based on the constitution demanding the government to fulfill its positive obligation to introduce the law which will provide adequate protection against gender discrimination.

The old Constitution contained elaborate provisions concerning women and gender equality. Article 67, for example, guaranteed equal rights to all citizens, regardless of sex. Another article (78) which specifically dealt with the issue of gender equality stated that: "Women have equal rights with men in all spheres of state, political, economic, social and cultural life."

The guarantees in the old Constitution for women's equality were based on equality with men’s right to work and to remuneration based on

• "equal pay for equal work"
• equal rights to rest and leisure,
• to social insurance,
• to education,
• to receive public honors and decorations, and
• to hold public offices;
• care for mothers and children;
• protection of pregnant women;
• paid maternity leave before and after birth;
• the development of networks of maternity clinics,
• nursery schools and preschools; and
• the development of services and community nourishment establishments.

In practice, however, the significance of all these and many other articles of the old Constitution has been highly limited. The Constitution has never been a directly applicable law - it should be considered an empty declaration rather than a law. Although some lawyers claimed that there were no legal obstacles to direct application after the transformation of a political system in 1989, the judiciary were not prepared to do it, so there have been few cases in which judges referred directly to the Constitution (e.g., the Supreme Court's verdict concerning retirement age).

The process of drafting the new constitution of Poland started as early as 1990. The Women's Rights Center, since its establishment in 1994, actively joined the constitutional debate criticizing, among other things, some of the ways the issue of equality was addressed in the old Constitution. The Center put forward its own approach to constitutional guarantees of women's rights. For instance, we addressed the fact that "care for mothers and children, protection of pregnant women, paid maternity leave before and after delivery, development of the networks of maternity clinics, nursery schools and preschools and development of services and community nourishment establishments" which constituted the basis of equality guarantees in the old Constitution were themselves incompatible with the spirit of equality.

Attributing all guardianship functions exclusively to mothers contributes, in our opinion, to the consolidation of the traditional gender-related, social roles, whereas real equality requires that all parental rights should be gender neutral. The state address either of parenthood or maternity and paternity, and not just maternity. Building nursery schools and preschools should not be regarded as the guarantee of equality for women but as a policy aimed at supporting the family as a whole. The so-called "guarantees of equality" in fact reinforced the traditional division of social roles between men and women, thus restricting women's civil rights and sanctioning discrimination against women. The Women's Rights Center drew public attention to the language used in the old and repeated in the new constitution, that "women have equal rights with men". Such language in our opinion makes the man a point of reference for the woman and is itself both discriminatory and paternalistic. We succeeded in persuading politicians to replace it with the wording: " Women and men have equal rights ...."

In the first drafts of the new Constitution there prevailed a minimalist approach to the guarantees of equality. The legislators were first satisfied with the general and gender neutral provisions regarding equality before law, claiming that including the category of gender is unnecessary, too obvious and redundant. The Constitutional Committee created in 1993 to draft a new constitution, under the pressure exerted by non-governmental organizations including women's groups, developed constitutional guarantees of equality introducing, among other things, a ban on discrimination related to gender and sexual orientation. The provision from the old constitution specifically dealing with equality of men and women has been included in the new basic law in similar wording.

Constitutional guarantees for gender equality

The guarantees of equal rights for women and men have been included in Chapter II which contains provisions pertaining to freedoms, rights and obligations of persons and citizens. The modified version of the old constitution provisions concerning equality has been adopted while particular grounds for the ban on discrimination, including discrimination based on sex and sexual orientation have been removed from the general provisions. Thus Article 32 relates generally to issues of equality and discrimination while Article 33 pertains specifically to equality for women and men.

Article 32

1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.
2. 2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.

Article 33

1. Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland.
2. Men and women shall have equal rights, in particular, regarding education, employment and promotion, and shall have the right to equal pay for work of equal value, to social security, to hold offices, and to receive public honors and decorations.

The Women's Rights Center criticized the fact that it is only public authorities that are constitutionally obligated to equal treatment. We recommended that the guarantees of equality should be extended by placing private persons and institutions under the same obligation. Such a narrow interpretation of equality is in our opinion incompatible with the spirit of the modern approach to human rights. Extending the scope of law by increasing the number of persons constitutionally obligated to respect individual rights and freedoms creates a legal environment which is more friendly with women.

To read and give your comments about Equality provisions prepared and recommended by the WRC click here

We are also of the opinion that restricting constitutional guarantees of equality to public authorities is inconsistent with the international obligations of Poland. For example, Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women in Clause "E" states that "The States Parties to the Convention undertake all appropriate measures to eliminate discrimination against women by any person, organization or enterprise".

We are afraid that the absence of broader constitutional guarantees of equality can make it more difficult for the supporters of the Law on Equal Status of Men and Women to apply the constitution in order to put pressure on the legislature to adopt the law.

During the constitutional debate the Women's Rights Center, referring to international human rights documents, emphasized the necessity to introduce in the new constitution a provision that would obligate the government to take positive measures to create conditions that would help citizens to enjoy their rights. The State authorities should, in our opinion, ensure equal opportunities for all social groups particularly susceptible to discrimination, even through the temporary adoption of unequal treatment. Without regard to specific women's rights and without legal and institutional guarantees for the full enjoyment of women's human rights, equality of rights between men and women will remain an illusion and democracy will remain the DEMOCRACY OF MEN.

Family in the Constitution

Both the old and the new constitutions contain provisions concerning maternity and marriage. In the old Constitution Article 79 stated that "the Republic of Poland is taking care of marriage, maternity and family. Families with many children are under special protection of the government". This article guaranteed the realization of the rights and duties related to alimony, it guaranteed equality between children born into marriage and children born out-of-wedlock and ensured that the Republic of Poland pursued a policy aimed at improving the quality of housing.

The new Constitution contains several articles which refer to the family. Article 18 contained in the general provisions states that " Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland". This article in its original version referred generally to marriage but under the pressure exerted by the Catholic Church, which increased particularly when one of the constitutional drafts in the article concerning discrimination forbade discrimination based on sexual orientation (the provision has been later removed). The Women's Rights Center lobbied for replacing a word "maternity" with a word "parenthood" which seems to better serve the idea of equality. The amendment was put forward and finally adopted but the word "maternity" remained. The result is a bizarre wording in which "maternity" is separated from "parenthood". We also succeeded in introducing the provision on equal right of men and women in family life (Art.33). We did not manage, however, to include the provision obligating the government to promote partnership in the family (proposed Art. 71) nor the provision on various family forms.

Article 71 which refers to the family has been included in the chapter on economic, social and cultural freedoms and rights and it reads as follows:

1. The State, in its social and economic policy, shall take into account the good of the family. Families, finding themselves in difficult material and social circumstances - particularly those with many children or a single parent - shall have the right to special assistance from public authorities."
2. A mother, before and after birth, shall have the right to special assistance from public authorities, to the extent specified by statute.

Articles 48 and 72 refer specifically to the rights of children:

Article 48

1. Parents shall have the right to rear their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience and belief and also his convictions.
2. 2. Limitation or deprivation of parental rights may be affected only in the instances specified by statute and only on the basis of a final court judgment.

Article 72

1. The Republic of Poland shall ensure protection of the rights of the child. Everyone shall have the right to demand of organs of public authority that they defend children against violence, cruelty, exploitation and actions which undermine their moral sense.
2. A child deprived of parental care shall have the right to care and assistance provided by public authorities.
3. Organs of public authority and persons responsible for children, in the course of establishing the rights of a child, shall consider and, insofar as possible, give priority to the views of the child.
4. The competence and procedure for appointment of the Commissioner for Children's Rights shall be specified by statute.

The opposition, mainly right wing parties, criticized the provision because it granted too much freedom and rights to children while depriving parents of their parental rights. Poland submitted numerous reservations to the Convention on Children Rights including those concerning the children right to express their own opinion.

Right to life

One of the most controversial issues debated during the drafting process was the provision on the right to life. The opponents of the freedom of choice in the Constitutional Committee submitted numerous amendments aimed at ensuring the legal protection of life since its conception. In response, the Women's Rights Center launched a campaign aimed at including a provision that would guarantee freedom of reproductive choice.

Numerous organizations supported the language proposed by the Center, some put forward more moderate proposals. The pressure exerted by the Catholic Church, however, was so strong that we did not succeed. Guarantees of human rights in the field of reproduction were not included in the Constitution.

Finally, in the new Constitution, instead of the originally proposed language from the international human rights treaties (everyone has the right to life) the following language was adopted: "The Republic of Poland shall ensure the legal protection of the life of every human being" (Article 38). Wording that is generally accepted and used in international conventions’ provisions concerning legal protection of life was rejected by the Catholic Church on the grounds that it does not provide satisfactory protection for the fetus. The provision provoked heated controversy in the last stage of the drafting process. The adopted version, proposed by the Democratic Left Alliance provides for the more comprehensive protection of the so-called un-born child. The Church expects that the Constitutional Tribunal will interpret the language of the provision in accordance with the Church's wish.

Article 47 of the Constitution provides that everyone has the right to decide freely on his personal life which, in our opinion, can be interpreted in favor of women making reproductive decisions.

To read and give your comments about Right to life provisions prepared and recommended by the WRC click here

Other constitutional provisions proposed by the Women’s Rights Center

The Women's Rights Center proposed a number of other provisions to the constitution, such as the rights of the victims of violence, including a guarantee of legal assistance for the poor and the right to compensation for the damages resulting from either any action or omission by public authorities

We did not manage, however, to introduce these provisions or a provision to create a position of an Ombudsperson for the Equal Status of Men and Women.

Constitutional Tribunal

The Constitutional Tribunal was set up in Poland in 1985 in order to adjudicate upon the conformity of legislative acts to the Constitution and of other normative acts to the Constitution or to legislative acts.
In connection with pending administrative or judicial proceedings, questions of law may be addressed to the Constitutional Tribunal as to the conformity of a normative act to the Constitution. Moreover, the Constitutional Tribunal formulates universally binding interpretations of statutes.
Proceedings before the Tribunal may be instituted upon an application submitted by the organs listed in the Constitutional Tribunal Act:

• the President,
• the Prime Minister,
• the First President of the Supreme Court,
• the President of the Supreme Administrative Court,
• the Commissioner for Citizens' Rights (the Ombudsman),
• the Public Prosecutor-General.

Applications for judgment on the conformity of legislative acts to the Constitution may also be submitted by communal or regional councils, local self-government councils and specified organizations if the legislative act subject to question relates to matters that fall within their competencies.
Under the old Constitutional Tribunal Act natural persons are not vested with the right to file a petition.

Judgments on the non-conformity of an act to the Constitutions may be considered and quashed by the Sejm by a two-thirds majority of the votes cast.

The new Constitution and a new Constitutional Tribunal Act based on it introduced the right for everyone to appeal to the Tribunal. According to the new Constitution the Constitutional Tribunal shall pronounce judgments on the conformity: of legislative acts and international agreements to the Constitution; of legislative acts to the ratified international agreements whose ratification required previous approval by a statute; of other provisions of law passed by the central state organs to the Constitution, and ratified international agreements and statutes; and of the purposes and activities of political parties to the Constitution

The Constitutional Tribunal shall also adjudicate in response to the individual appeal of everyone whose constitutional freedoms or rights have been infringed as to the conformity of a legislative or other normative act upon which a court or organ of public administration has based a final decision on his freedoms or rights or on his obligations specified in the Constitution.

On several occasions the Constitutional Tribunal pronounced judgments with regard to discrimination based on gender.

It should also be emphasized that the Tribunal did not have to decide with respect to gender equality since the ordinance was issued without any statutory grounds and as such was incompatible with the Constitution.
The Tribunal took this opportunity in order to stress the fundamental character of the guarantees for gender equality and to highlight the fact that no distinction between individual persons based on the discriminatory criteria is permitted.
It stated that it is prohibited to distinguish between individuals according to criteria which lead to the creation of closed categories of people with different legal statuses.
Sex is certainly such a criteria.

The Tribunal, however, upheld its earlier opinion that the principle of equality cannot be treated as an absolute and should be modified by the principle of social justice. Therefore, the provision which is aimed to increase the position of women cannot be treated as contradictory to the constitutional principle of equality. Its goal is not to limit but enlarge guarantees of equality.

The Constitutional Tribunal pronounced several judgments concerning retirement age, which in Poland is different for men and women. The first such judgment was passed on 24 October 1989 (K 6/89), and justified differences in the retirement age for women and men.

In its judgment the Tribunal said that "The law in order to be just, can differentiate and address its specific provisions to different social groups. Therefore because of the biological and social differences between women and men, the imposition of identical retirement conditions for both sexes would be against the principle of equality before the law."

The next judgment of the Constitutional Tribunal, pronounced on 24 September 1991 (K 5/91), differed from the previous one. The decision addressed the issue of women occupying academic positions but not positions of full professors who were discriminated against by the Law on Higher Education. That law compelled them to retire at earlier age.

In its decision the Tribunal emphasized that "constitutional guarantees of gender equality pertain also to equality in the workplace, including equal opportunities. Thus with respect to some professions, decreasing the retirement age for women should be treated as a specific women's right ....obligatory dissolution of the employment contract restricts women's professional career opportunities and discriminates against women in relation to men who enjoy the same professional status. Restricting women's professional opportunities where biological and social differences do not affect the quality of work or/and capacity to promotion drastically violates the principle of equality between men and women and limits women’s access to the labor market".

The constitutional Tribunal has also passed some judgments on seemingly gender neutral issues which, however, affect mainly women.

For example in its decision of 23 February 1993, the Tribunal stated that Article 10, Clause 1, Item 2 of the Law of 20 December 1990 on Social Insurance of Farmers does not conform to the constitutional principle of the state being governed by the rule of law and to the principle of equality.
The decision concerned the single benefit to be paid to the uninsured person who is the closest relative of the insured farmer and who suffered lasting damage to his/her health as a result of an accident which occurred while such person was helping the insured farmer with the farm work.
The wife of the farmer was not included among persons entitled to such benefit. This provision discriminated against women since wives were the ones concerned in most cases.

The Constitutional Tribunal stated that the questioned provision did not conform to the Constitution because it does not include the spouse among the close relatives of the insured farmer.

Another issue of importance for women with which the Constitutional Tribunal has dealt was the right to unemployment benefits. The Tribunal decided that the exclusion of benefits for the unemployed who cohabited in the same household with a spouse whose income exceeded an average double income is discriminatory. Depriving the unemployed of their right to the benefit would result in inability to include the periods of unemployment to the time of work required in order to acquire and keep the rights of employees and the right to a retirement pension. Due to the higher unemployment among women and higher average income of men, these provisions disproportionately affected the situation of women and for that reason they were regarded as discriminatory against women.

The next issue the Constitutional Tribunal dealt with in respond to the complaint filed by the Ombudsman pertained to the situation of single parents who are not permitted to reduce their income tax by dividing taxable income between them and their children. These regulations, which may seem gender neutral, were in fact detrimental to single mothers since they compose the majority of single parents. The judgment was beneficial to single parents and the law makers had to change the relevant provisions of law.

On May 28, 1997, the Constitutional Tribunal decided that the abortion law, which was liberalized in 1996 (allowing for abortion on social grounds), clashed with the constitution (the old one).

The Tribunal was supposed to state the conformity of the law with the Constitution, but instead based its decision on the vague principle of the "rule of law." The Tribunal found that the abortion violates the first article of our constitution. The one which names Poland as a democratic state governed by the rules of law. Andrzej Zoll, Chairman of the Tribunal, who announced the decision said:
"The highest value in democracy is human life, which must be protected from its start to finish.".
The decision went on to point out grammatical errors in the law as support for finding it unconstitutional. The court also used the UN Convention on the Rights of the Child to justify its ruling. It seems no accident that the decision was made a few days before the Pope's tenth visit to Poland. The Constitutional Tribunal went beyond the scope of its task by deducting the protection of life from the moment of conception from the principle of the democratic state of law. The decision of the Tribunal is against the dignity, and rights and freedoms of women. This move, though, has not gone completely unanswered by members of the Polish Parliament. The Left-Alliance moved to place an abortion referendum on the ballot in conjunction with the September elections after the Tribunal’s decision was announced, but not surprisingly, this move was rejected by Parliament. Women’s rights activists used all opportunities available to voice their opposition to this ruling by either writing or faxing letters, or organizing a collective action among various groups.

The Supreme Court has also passed judgments concerning gender equality. One of them pertained to the provision regarding compensatory supplements to wages and salaries paid to women employees who are transferred to other positions because of pregnancy. The Supreme Court in its judgment of 28 April 1994 decided that pursuant to the provisions of the law on of the Protection of Work of Pregnant Women, pregnancy may not result in the loss of any income. A pregnant woman is entitled to all these components of remuneration which she would be paid if she still worked overtime or on the night shifts.

On May 14 1996 the Supreme Court passed also a judgment (III ARN 93/95 - OSNAPIUS 1996, nr 23 poz. 352) on the retirement age based on the complaint of a woman who was a civil servant and despite her will was fired after reaching the age of 60. The court in its ruling left the decision over the retirement on employer without imposing on him/ her any additional obligations and limitations.

The issue of discrimination against women has been often addressed by the Ombudsman. As mentioned above, it was on his initiative that the questions concerning gender equality have been considered by the Constitutional Tribunal. The position of the Ombudsman’s office was clear that differentiation in the retirement age, which has resulted in forcing women to go for early retirement, has resulted in gender discrimination. Professor Ewa Łętowska, who held the office from 1988 to 1992 paid much attention to this problem in her annual reports. She introduced a special chapter on gender equality into the document. She admitted that some regulations which used to be considered as protective, such as those which give women the right to an earlier retirement age or the right to paid maternity leaves, have later become discriminatory.

The Constitution and International Human Rights

The old Constitution does not refer to international law in any way whatsoever, whereas the issue of the role of international law in the domestic legal system occupies much space in the new Constitution.

Article 9 states that "The Republic of Poland shall respect international law binding upon it," and Article 87 in the chapter on the sources of law mentions ratified international agreements as one of the sources of universally binding law.

Article 91, in turn, states that:

1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.
2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes. 3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.

Entry into the life of the new Constitution allows for wider application of international agreements ratified by Poland and the laws adopted by international organizations in order to raise national standards concerning gender equality. The Women's Rights Center is considering possibilities of practical application of international law in order to improve legal position of Polish women.