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The Church dominates the state The Church dominates the state

Legal expert, Dr. Pawel Borecki, discusses frankly Vatican manoeuvres to get the Polish concordat through before the country's new constitution. This meant that Poland's whole legal framework had to conform to the concordat and this contributed to the "further clericalisation of public life". Included at the end is a remarkably deferential note to the Pope from a future Polish Prime Minister.

The Church dominates the state
(“Kościół ma przewagę nad państwem”) 
Trybuna, 25 July 2009

Krzysztof Lubczynski talks to Dr. Pawel Borecki, a religious law expert at Warsaw University. 

The publication of “Ten years of the Polish concordat”, a book edited by Czeslaw Janik and yourself, almost exactly on the 16th anniversary of the signing of the concordat between Poland and Vatican, and before the 12th anniversary of its ratification, is a good opportunity to recall that historic moment.  What were the major sins committed at the preparatory stages of the 1993 concordat?

 “The original sin was the finalising of the concordat by the government of Hanna Suchocka, when it was almost certain that parties which formed that government would be defeated in the coming elections.  That government was not really entitled to decide on this matter.  Jan Maria Rokita, the then chief of the Council of Ministers office, explained this to me in detail.  He admitted to me in an interview that the government was fully aware of this and decided to present the new — leftist, as was then expected — cabinet with a fait accompli.  It was not only politicians, however, but society as a whole, who were presented with this state of affairs.  I was also told that both Rokita and the Foreign Minister, Krzysztof Skubiszewski, attempted to secure the best interests of the state, which was confirmed by the Church representatives.  Sinful was also the fact that both parties to the negotiations were Catholic, and in this situation the lay Catholics were likely, even sub-consciously, to adopt a submissive role in relation to priests, particularly bishops.”

The newly-elected in 1993 leftist government inherited this ungrateful task…

“The Left halted the ratification process, and just as well.  The delay afforded the opportunity to expose the weaknesses of the document.  It transpired that the concordat, held up as an example to Central and Eastern Europe, was not so perfect, after all.  It lacked precision and its language, rather than being grounded in law, was often the language of the Church’s social doctrine.  There was a lack of agreement on financial and property matters, which constituted, if I may remind you, the largest part of the 1925 Polish concordat.  The 1993 concordat did not clarify these matters.”


“Rokita told me that the state party proposed the adoption of financial solutions based on the Italian model.  This is based on the tax voucher system, that allows the transfer of part of income tax revenue to qualified religious bodies, including the Catholic Church.  In this case the state directly subsidises the Church only to a limited degree.  I, however, think that […] the Church Fund should be abolished and the Italian model should be introduced, as Polish and Italian societies have similar structures and Catholicism plays similar social and political role in both.  What has been happening since 1989 is that the Church snatches funds and financial concessions directly from the state budget.  These funds finance Catholic universities, about 40,000 catechists [Catholic Religious Education teachers in state schools], and the salaries of priests employed by the state, for example as chaplains in the army.”

Why did the Church not accept that proposal?

“I have the impression that the Church is not entirely sure of its members’ generosity.  Apart from that, if someone funds his Church, he might expect to be invited to participate in making decisions about how his money is going to be spent.  In Poland the Church is very clericalised.  It prefers legally guaranteed state subsidies and relies on parts of political elites that submit to it.  The Church might, however, harm its own interests this way if, rich in privileges, it loses its sense of social reality and in consequence the support of increasingly secular society, as polls already show.”

Are the accusations of breaking the Constitution while drawing up the concordat justified?

“There are serious legal doubts.  The Constitution of 1952, binding at the time of signing the concordat of 1993, in matters of religion provides that the legal status of the Church is established exclusively by acts of Parliament, not by international agreements.  This means that the government, by signing the concordat, in effect broke the Constitution.  The second doubt concerns the method of ratification of the concordat.  It limits the sovereignty of the Polish state in some matters by ceding the power of governing bodies to an international organisation, which is what the Church is.  First, this happens as a consequence of including Canon Law in the Polish legal system, which is sanctioned by the concordat.  Canon Law should be considered foreign law.  The Polish authorities have no influence on its content, nor on the process by which it is established.  Second, the ceding of power takes place in the event of the so-called concordat marriage, as to some degree the role of a state registrar is taken over by a priest.  Third, article 22, §2 of the concordat provides for the establishment of a state-church committee charged with a reform of the system of financing of the clergy and Church institutions.  This limits the authority of the state finance bodies in charge of the public budget.  The Polish Catholic Church, it should be stressed, belongs to a wider international, and at the same time universal, organisation, with its legislative body outside of the Polish border.  Consequently, the ratification of this type of international agreement should have taken place only with the agreement of the Sejm and Senat [the lower and the upper houses of the Polish Parliament], expressed by a qualified majority of 2/3 votes with the presence of at least half of the members of each house.  In the event, the agreement to ratify the concordat was granted by passing a bill by ordinary majority.”

The concordat also regulates the rules governing the universities and departments run by the Church, theology departments among others.  Does the concordat guarantee, for example, the freedom of scientific enquiry at these universities and departments?

“First, we have to ask whether theology is a science at all.  I doubt it, because theology already provides general answers to questions concerning its subject matter, whilst other branches of science still seek answers to theirs.  The status of theology departments at state universities is regulated by suitable agreements between state authorities and qualified Church institutions.  The latter have employer’s rights in relation to employees of those departments.  This in itself might present a risk of limiting the freedom of scientific enquiry and the publishing of its results.  The autonomy of higher education establishments is potentially at risk.  The employees of theology departments participate in the decision-making process concerning entire universities.  It goes without saying that theology departments are staffed by clergy, whom, whether we like it or not, we have to finance.”

The Church vehemently opposed using the word “separation” in the Constitution and the concordat, preferring “independence and autonomy, and co-operation in the interest of human and common welfare”.  Why? 

“The first phrase, about separation, has its roots in secular philosophy of social systems; the Church, however, favoured a phrase used in its own social doctrine.  In the light of this doctrine the Church’s stance is that it has the right to judge the secular world, and to do this through the prism of its own moral principles, but the secular state has no right to judge the Church and unilaterally interfere in its interests. Thus the Church secured its own independence and internal autonomy without guaranteeing that it will not interfere in state matters.  To put it simply: the Church has nothing to do with the state, but the Church can judge the state and its laws from its own particular perspective.   Besides, the autonomy and independence principles are difficult to reconcile with the constitutional characteristics of the state.  The state is not autonomous.  It is sovereign.  To talk about its autonomy in relation to the Church is to degrade it.  The Church is one of religious denominations present within the state territory and the state has the right to regulate general conditions governing the activities of such associations. 

In practice the democratic Polish state respects the internal independence and autonomy of the Church.  The only reprehensible example of departure from this principle was the Kaczynski brothers’ interference in the nomination of the archbishop of Warsaw in early 2007.  On the other hand, there are many examples of undermining the state independence and autonomy by the Church after 1989, such as repeated interference in the election process, in the education system, in bioethical issues, in the media, and even in the process of staffing of particular state posts, to name a few.  The “separation” phrase, accompanied by detailed directives, particularly the principle of the state neutrality in relation to individual conscience, would be much more transparent.  The Church is biased against the word “separation”, as it has associations with socialism, or communism, or perhaps with the 1905 French act on the separation of church and state.  But it should be remembered that the roots of this principle go back as far as the 17th century and the English colonies in North America

The concordat was signed four years before the new Constitution, whose authors had to adjust its rules to those of the concordat, rather then the other way round.  What are the main discrepancies between the concordat and the Constitution?

“The very principle of the relationship between the state and the Church, set out in the first article of the concordat, is not fully concordant with the principle set out in Article 25, § 3 of the Constitution.  Similarly, there is a discrepancy relating to the teaching of the Catholic religion in nurseries and schools. Article 12 of the concordat grants the parents the right to decide, whereas Article 48, § 1 of the Constitution states that it is necessary to consider the child’s maturity and his or her freedom of conscience and belief.  The difference is obvious.  Moreover, the concordat states that the status of Church universities is regulated by the agreement between Episcopal Conference and the government.  Those sorts of agreements can not constitute law and this is contrary to the provisions of Chapter 3 of the Constitution, where sources of law are listed in detail.  Generally speaking, religious law is not rendered compatible with the Constitution, and what’s more, the concordat sometimes has larger influence on the religious law than the Constitution itself.  The Church’s viewpoint is specific.  The concordat is concerned not so much with protecting the rights of Catholics, as, above all, with protecting the interest of the Catholic Church’s institutions.  The Constitution, meanwhile, should consider and protect the freedoms and rights of all citizens, believers and unbelievers alike.”

Why didn’t the representatives of the state clearly tell the representatives of the Church:  we will talk about a concordat only after the new constitution is drawn up?  After all, it was obvious that the days of the PRL [communist] Constitution of 1952 were numbered.…

“This is the question.  What’s more, the representatives of the Church - Holy See themselves were surprised at this.  But when somebody is overzealously offering a more advantageous solution, why not take it?  On the other hand, neither side believed that the drafting of the Constitution would be completed soon.  Apart from that, it was obvious that the concordat, accepted earlier, would determine the content of the Constitution, and that was the object of the exercise.”

So it was done deliberately?

“Of course it was.  They also knew that it was more difficult to change the concordat — an international agreement — than the Constitution.  I have to add that the problem is that a concordat is not always fully respected by the Church.  An example is an issue of returning the status of a national holiday to Epiphany [January 6].  Article 9, § 2 of the concordat provides that any addition to [religiously inspired] national holidays must be previously agreed by parties to the concordat, whereas the bishops unilaterally supported the “folk” movement initiated by Jerzy Kropiwnicki.  I must also add that the Article 22 of the concordat, which stipulates the establishment of a Church-state finance committee, has not been adhered to.  Instead, we have so-called concordat committees — on the concordat and the state side — which were not mentioned in the treaty of 1993.”

What would have to happen for the concordat to be renegotiated or broken?

“The Church would, for example, have to break its terms drastically, but with such a small number of obligations towards the state, it is a purely hypothetical possibility.  On the state side, a condition would have to be a major political desire to change the legal system.  There has never been such a political desire, even when leftist groups were in power.”

So the concordat will continue.  What will be the consequences of this?

“The differing fundamental values of the concordat and the state law, the Constitution above all, might cause tensions.  In the light of previous experience we can say that the concordat has enabled further clericalisation of public life.  The treaty will also impede a natural secularisation of society, or re-secularisation of Polish society.  In a sense it divides citizens into Catholics and the rest.  It makes the relationship between the Church and the state asymmetric, in favour of the Church.  All in all it contributes to the image of contemporary Poland as a practically quasi-religious country.”

So what do you propose as a minimal measure?

“Scrupulous adherence to the rules of the concordat and the interpretation of any unclear rules in accordance with the state’s best interests.  This would help immensely.  Amongst others, the principle should be adopted, in practice, that the state’s partners in dialogue are Apostolic Nuncio, Holy See, and ultimately the Pope, not each individual bishop.  For a return of a fully neutral state, however, we will need to wait.  For a state where the Church will not dominate the state, and the state will not dominate the Church.”

 Jaroslaw Kaczynski to Benedict XVI
Warsaw, 16 March 2005

The year before Jaroslaw Kaczynski became Prime Minister he sent the new Pope a note in his capacity as Party Chairman. It does not appear to reveal an overwhelming regard for the separation of church and state.

His Holiness
Holy Father
Benedict XVI

Praised be Jesus Christ!

Holy Father,

We have greeted the choice and the taking up by Your Holiness of Petrine office with great joy.  Rejoicing that the Church has a new Pope, in Your Holiness we welcome the indefatigable defender of the Truth and the value of Christian civilisation.

Please accept, Holy Father, our loyalty.  We assure that you are constantly in our prayers.  We desire – as far as we are able – to support the mission of Your Holiness in our work for the common good of our nation and Europe through our loyalty to the Church, the Vicar of Christ, and his teaching.

With filial devotion –

Law and Justice
Jaroslaw Kaczynski


Kościół ma przewagę nad państwem” 
Trybuna, 25 July 2009
reposted at:

Prawo i Sprawiedliwość (Law and Justice Party), Polska katolicka w chrześcijańskiej Europie (Polish [and] Catholic in Christian Europe, Warsaw, 2005,
Aneks (Appendix) 2, p. 55 

(Scroll down to the PDF file, "Broszura Katolicka", open that and scroll down to the last page of the brochure.)

Translated by Renata Anderson 

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