Poland’s Supreme Court in Disarray After Judges Defy Purge
Posted July 4, 2018 4:45 p.m. EDT
Updated July 4, 2018 4:48 p.m. EDT
WARSAW, Poland — Surrounded by cheering supporters, Poland’s top Supreme Court justice took a defiant stand on the courthouse steps here Wednesday morning, hours after the government purged the tribunal. She vowed to keep fighting to protect the constitution and the independence of the nation’s courts.
“I’m doing this to defend the rule of law and to testify to the truth about the line between the constitution and the violation of the constitution,” the justice, Malgorzata Gersdorf, told the crowd. “I hope that legal order will return to Poland.”
At the stroke of midnight, the government had effectively forced her and more than two dozen other justices out of their jobs, but on Wednesday morning, authorities did not prevent her from entering the building.
The courthouse confrontation was followed by dueling news conferences, fiery speeches and more street protests.
The only thing that seemed certain was that the Supreme Court itself was in disarray, with the purged judges refusing to recognize their dismissal, and government officials saying that they would no longer be allowed to hear cases.
In a reflection of the chaos, the jurist named by the government as Gersdorf’s successor, Justice Jozef Iwulski, 66, said: “President Andrzej Duda neither appointed me, nor did he entrust any duties to me. He didn’t make any decision in a concrete manner.”
In fact, it was Gersdorf who had recommended that Iwulski fill in for her — a move experts thought would make it harder for the party in power to stack the court.
After giving yet another press briefing Wednesday afternoon, Gersdorf said she would take a “vacation,” leaving Iwulski in charge.
By day’s end, with even Polish legal experts admitting utter confusion about where things stand, crowds once again gathered in front of the Supreme Court.
Lech Walesa, who led the Solidarity labor movement in the 1980s that helped topple the communist government and who later served as Poland’s president, joined the demonstrators.
In an radio interview earlier in the day, Walesa said he would pursue peaceful means to protect the constitution, but warned of dire consequences if the governing party did not back down.
“What will happen is what I predicted at the very beginning: There will be a civil war, there’s nothing we can do about it,” he said. “This is the path of civil war. I’d like to avoid it.”
The new rules lower the mandatory retirement age for judges to 65 from 70, which could force out up to 27 of the 72 Supreme Court justices, and also call for a disciplinary chamber to be established, raising fears that the governing Law and Justice Party will use the new directive to intimidate judges.
Law and Justice, which has sought for years to take over the judiciary and resorted to authoritarian means to maintain and enhance its grip on power, said it would soon name judges to replace those now obligated to retire.
Jaroslaw Kaczynski, the party leader, said that Gersdorf and her supporters were “doomed to fail miserably,” according to the right-wing newsmagazine Gazeta Polska, which published an interview with him on Wednesday.
Kaczynski was also undeterred by the threats of sanctions by the European Union, which he accused of trampling on Poland’s sovereignty, with the larger members of the bloc using their power to “brutally exert pressure” on smaller and weaker ones.
The Polish prime minister, Mateusz Morawiecki, speaking at the European Parliament on Wednesday, defended the new laws and added his own criticisms of the bloc.
“Many Europeans don’t like the direction the European Union is going in,” Morawiecki said. “When they feel that they’re losing influence on the future of Europe and the world, then they’re going to oppose what’s happening.”
“You can call that populism,” he said, “but at the end of the day, we are going to have to ask questions asked by citizens and their expectations.”
On Monday, the European Commission, the executive arm of the European Union, referred the case to Europe’s highest court, but Poland has a month to respond, and any ruling might come too late to stop the overhaul.
When Law and Justice came to power, it campaigned against what it saw as a corrupt bureaucracy, calling for Poland to “get up from its knees.” The message found widespread appeal in villages and towns, especially in eastern Poland, where many people felt left behind as the country moved rapidly to embrace Western values and capitalism.
Many of the safety nets that were part of the old, Soviet-style system had disappeared, and rapid economic growth mainly helped better-educated city dwellers.
While Law and Justice’s emotional appeal lay in its nationalist rhetoric and frequent reminders of historic betrayals of Poland, it has also been bolstered by generous social policies, including the establishment of a monthly stipend for new mothers.
But for Kaczynski, transforming the courts was always a central goal.
When his party was in power from 2005 to 2007, many of its legislative efforts were blocked by judges. He came to believe that the transition to democracy that started in 1989 was flawed because many former communists were allowed to hold onto their positions. Although the number of people from the communist era still in judicial positions has dwindled, the party says that communist thinking still infects the system.
So when the party returned to power in 2015, it moved swiftly to rebuild the judicial system. It stacked the Constitutional Court, which decides if legislation violates the constitution. Once that court was under the party’s control, its lawmakers passed a series of measures aimed at other parts of the court system.
But their first effort to reshape the Supreme Court, a year ago, was met with widespread protests. The government backed down.
Last winter, it proposed new measures, slightly watered down, that critics said would have the same effect — turning the Supreme Court into an instrument of the party.
In December, after a devastating report by the Venice Commission, which monitors rule-of-law issues for the European Union, the bloc of nations invoked Article 7 of its founding treaty to take action against Poland. It became the first country in the history of the union to be threatened with losing its voting rights.
This time, however, the government would not be deterred.
Under the legislation, Duda can grant exemptions to the mandatory retirement age, but judges must ask him to do so. The president did so for Iwulski on Tuesday.
Gersdorf and many colleagues refused, setting the stage for the standoff Wednesday morning.
The country’s deputy minister of justice, Michal Wojcik, told the Polish Press Agency that Gersdorf had been allowed into the court because no citizen is barred entry, but he said she would not be allowed to rule on cases. The “recruitment procedure” to fill vacant seats has started, Wojcik said, and they are expected to be filled “in a matter of weeks.”
Outside the court, young and old gathered to make their voices heard. Among them was Adam Strzembosz, 87, who helped draft the constitution and was the first president of the Supreme Court after the fall of communist rule.
Struggling to be heard above the crowd, he said that the constitution was clear: Every judge has the right to serve a full six-year term, and a new age limit should not be used to cut terms short.