Regulation (EC) No. Nowacka is eligible for appeal to the Constitutional Court [VIEW]

Minister Nowacka, by issuing a regulation amending without agreement with the churches and spiritual unions the 1992 MEN Regulation on the teaching of religion in public education violated Article 12(2) of the 1991 Law on the education system. She besides did not comply with § 74 of the Prime Minister's 2002 regulation on the "Rules of Legislative Technology". She so violated the fundamental constitutional rule of legalism or the regulation of law, which states that public authorities operate on the basis and within the limits of the law – explains Prof. Paweł Borecki of the Department of spiritual Law of the Faculty of Law and Administration of the University of Warsaw. He adds that it would be justified to challenge that regulation amending the Constitutional Court.

Marcin Przeciszewski, KAI: On 1 August, a regulation was published by the Minister of Education Barbara Nowacka, who changes the principles of organization of spiritual learning at school. It allows students to be combined into inter-branch or inter-class groups, even if there are more than 7 students in a class. This will consequence in students of different ages and levels of cognition in 1 class. These rules will be introduced from 1 September without agreement with the Churches. What does the prof. say?

Prof. Paweł Borecki, UW: As a lawyer, I will focus on the legislative and procedural aspect of this regulation. And first, as a gift, I will present to you a copy of the first of the 1992 archival decree of the Minister of Education Andrzej Stelmachowski, where they appear outside the signature of the then head of the MEN, the signatures of the leaders of 12 Churches teaching religion in public education. It is simply a historical paper which clearly indicates that, in accordance with Article 12(2) of the inactive applicable provisions of the Law on the Education strategy of 1991, the amendment of the Regulation of 14 April 1992 on the Conditions and Methods of Organization of religion in Public Preschools and Schools should take place in agreement with the Catholic Church, The Orthodox Church and another officially active churches and spiritual unions. At least with those who teach religion in the public education system.

According to data obtained by me at the Ministry of National Education in May of this year, specified churches are 22. From the Catholic Church to the Muslim League. Part of the number churches and spiritual unions due to the strong dispersal of their faithful, and thus a tiny number of them in 1 place, teaches religion at out-of-school points where students from different schools participate, but these points function within the public education system. The grades of religion there are prescribed for school certificates.

– What precisely does the word “in agreement with churches and spiritual unions” mean in the law?

– In accordance with paragraph 74(1)(2) The regulation of legislative technique, as established by the Prime Minister's Regulation in 2002, means that the issuing authority must be approved by another body or entity if specified an entity is envisaged. In this case they are curious Churches and another spiritual unions.

Minister Nowacka should so address to all spiritual unions, at least those who teach religion in the public education system, an invitation to dialog aimed at changing the existing organisational principles of religion learning in public education. It can be argued that the deficiency of answer within a certain time limit is accepted as a presumption of approval of the ministry's proposal.

It can reasonably be argued that Article 12(2) of the 1991 Law is correct from the legislative side. In my opinion, in the light of the constitutional standards of 1997, he is flawed due to the fact that he does not supply guidance on the content of the applicable regulation. But if there is and is, then the minister in office is obliged to observe it or initiate its amendment by the Sejm. Meanwhile, this provision has now been explicitly ignored by the Ministry of Education.

– What is the responsibility of this provision?

– The validity of Article 12(2) is that the 1997 Constitution adopted 5 years later introduced restrictions on the rules for the issuance of implementing acts to laws, i.e. regulations. According to Article 92(1) of the Constitution, the Act authorising a certain body, in this case the Minister of Education, to clarify the principles of teaching religion at school, should supply guidance on the content of the regulation in which the ministerial regulation should go. The amendment of this Article is possible through a legislative procedure but may be attempted to repeal it by making a request for a uncovering of non-compliance with the rules on rules for issuing regulations to the Constitutional Court. However, since this has not been done, this article of the 1991 Act should be respected.

However, as far as I know, representatives of the Catholic Church were invited to the ministry and were informed of legislative proposals. They took note of it, but nothing was agreed. No paper on the agreement was signed. As for Churches and spiritual unions not Roman Catholic, including those concentrated in the Polish Ecumenical Council, according to information obtained from 1 of the Council's associate churches, an online consultation was originally provided, which besides did not end in written form. It's a form required for evidence. If information about the consultation on-line was true, it would be an expression of disregard for non-Roman Catholic Churches.

– So I realize that no of the twenty-two spiritual unions who teach religion in the Polish education strategy signed any agreement with the Ministry of Education, and there is no agreement from any of them to make changes? How should this be assessed?

– Minister Nowacka, by issuing a regulation amending without agreement with the churches and spiritual unions, violated Article 12(2) of the Law on the Education System. She besides failed to comply with the Prime Minister's 2002 regulation on "Legal technology rules". It consequently violated the fundamental constitutional rule of legalism or the regulation of law, which states that public authorities operate on the basis and within the limits of the law.

– What should the Catholic Church or another spiritual unions do now, what is the way to defend their rights?

– RMinister Nowack's order for procedural reasons is flawed, illegal and so unconstitutional. And in my opinion, this act must be brought before the Constitutional Court. And if it is contested, the Court, regardless of its prevailing political or world-view option, should issue a judgement stating that the regulation is unconstitutional. There's no another way.

– Who can apply to the Court by challenging a circumstantial law or regulation?

– In particular, the authorities of the state may propose: the president of the Republic of Poland, a group of at least 50 MPs, at least 30 senators, the lawyer General, the Prime Minister, the Ombudsman, I president of the ultimate Court, but besides Churches and another spiritual unions. The latter, due to the fact that this regulation concerns matters falling within their scope. I mean, there are their central governing bodies, which are expected to represent them. In the case of spiritual unions another than the Catholic Church, the substance is simple, due to the fact that they have their central organs in Poland. In the case of the Catholic Church, the central body is the Holy See. The Conference of the Polish Episcopal, in my opinion, does not have the right to make specified a request to the Court, but the Holy See may authorize it to do so.

I would besides urge asking the Constitutional Court to ask the president of the Court to appoint a ruling without undue delay, and a composition which would not give the another authorities the chance to ignore the ruling. From a tactical point of view, it would be good for a fewer churches to conclude this. I think it is worth hurrying up, due to the fact that on 1 September, the Regulation of the Minister of Education will enter into force and its effects may be irreversible.

– Have the Churches so far applied to the Constitutional Court?

– So far, 2 spiritual unions have been successfully applied to the Constitutional Court. The first was the Polish Autokephalist Orthodox Church in 2002 and was about discriminating regulation of the legal situation of erstwhile Unitsk temples in Podkarpacie. It is actual that the Church lost in 2003, but the ruling was made with crucial formal defects, which became the basis for bringing an action before the Strasburg Court and yet in 2009. The Orthodox Church has obtained legal regulation of the Pounite church ownership in Podkarpacie. Churches (Catholic and Orthodox) agreed and Donald Tysk's then government appointed the essential money, fearing an global scandal.

The second case afraid the Union of judaic spiritual Commons, which in 2013 applied for a declaration of unconstitutionality of the amendment to the Animal Protection Act, which ruled out alleged ritual slaughter. He won his case in 2014 at 100%.

The Catholic Church has never before applied to the Constitutional Court and it is worth creating specified a precedent. all precedent has its legal weight. The chance to win this case is large due to the fact that Minister Nowacka has clearly violated the law. And if the Catholic Church or another religions do not do so, then it is certain that Minister Nowack will follow the same way as now.

– Minister Nowacka announced publically that from 1 September 2025 she wanted to limit the number of spiritual lessons at school to 1 per week.

– Such a regulation is simply a crucial amendment to the April 1992 regulation. It's not a joke, and that must be the church's consent. Notwithstanding the fact that the limitation to 1 hr a week is not in formal conflict with the Concordat, since Article 12 of the 1993 Treaty does not specify the number of hours of spiritual lessons per week. The Concordat says that local and state authorities organise them according to the will of those curious in the school or kindergarten schedule.

– What would you advise the prof. to do in this situation?

– In addition to the strict adherence to Article 12 of the Law on the Education strategy of 1991 under the threat of appeal to the Constitutional Court, I will propose another actions.

What?

– In Poland there are inactive reasonably liberal provisions of the 1991 Law on trade unions. So I would advise that spiritual teachers establish a union. Let the catechestes join in this trade union, for a proverb – in unity strength. If the trade union includes a minimum of 15% of the representatives of the applicable professional group covered by the statutes, that union shall be considered typical of the environment concerned. The national trade union body in accordance with the 1997 Constitution may itself submit applications to the Constitutional Court in cases covered by its scope, as can the Churches and spiritual unions. And the working time at school for spiritual teachers will clearly be related to the scope of specified a union. due to the fact that reducing spiritual lessons by half would mean either dismissal or retraining for union members.

– What if the Court does not give a ruling favourable to the trade union or to the churches?

– This remains – given the experience of the Orthodox Church – to appeal to global institutions, primarily the European Court of Human Rights. This can be done by Catholic parents and spiritual teachers and the Churches themselves In turn, another group of parents can appeal to the UN Human Rights Committee, and a professional union bringing together spiritual teachers, if nothing can be done in the country, to the global Labour Organisation, which operates within the UN. That's democracy. The point is that the standards of the regulation of law should be applied, and the citizen was not afraid that he would wake up in another legal reality in the morning. And that's only due to the fact that the present Caesar has specified a whim.

The law has a stabilizing value, it makes human life or society predictable. The time of the pandemic and the war in Ukraine indicate that stableness is an crucial value of human life. It is simply a condition of security. Meanwhile, public statements and actions of the elder MEN on spiritual matters uncover certain features of the Hunwajbin mentality of the period of the Cultural Revolution in China. This leads to nothing constructive and lasting. I regret that this is how crucial matters are treated, specified as optional teaching of religion at school, which is not any Polish specificity, but a European standard. Therefore, the right to learn religion at school has been formulated, among others, in the regulations of the Constitution and the Concordate. That's why the 1991 government was designed. It's not just spiritual value, it's civilization value. I told my sister that "I respect my nephew's baptism as a symbolic beginning of his inculturation into European culture."

The education strategy for children and young people must be stable, not changed depending on the change of government, all year, two, 3 or four. We must be aware that we are experimenting on surviving social tissue. And the most delicate component of it are children and youth.

– These are crucial words: "Religion at school is an component of European culture" ...

– The European legal culture has 3 roots. Roman law, barbarous law, mostly German law, and canon law. You can like the Catholic Church or not, but you cannot ignore historical facts. And it would be worth reminding the militant feminists present that in the mediate Ages it was through canon law that grew from the norms of classical Roman law in matrimony that the protection of women's rights in matrimony was extended. German law was originally considered a form of marriage, including kidnapping or buying a woman. The female was definitely treated with objectivity. This only changed canon law, which had previously adopted the applicable Roman law. And Roman law introduced a fundamental rule that the condition of matrimony is conscious of the consent of both newlyweds.

KAI: Thank you for talking to me.

Marcin Przeciszewski

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