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Head of Polish supreme court defies retirement law criticised by EU Head of Polish supreme court defies ruling party's retirement law
(about 4 hours later)
The head of the Polish supreme court, Małgorzata Gersdorf, has turned up for work in defiance of a retirement law which has been pushed through by the rightwing government but criticised by the EU for undermining judicial independence. The head of the Polish supreme court, Małgorzata Gersdorf, has turned up for work in defiance of a retirement law that would force her to step down immediately, which has been pushed through by the rightwing government but criticised by the EU for undermining judicial independence.
On Monday, the EU launched legal action against Poland relating to the law, the latest salvo in a bitter battle over judicial changes critics have decried as unconstitutional. Holding a white rose and flanked by anti-government protestors, a composed-looking Gersdorf entered the supreme court building after briefly addressing the crowd that had gathered to express its support for supreme court judges resisting government attempts to take control of Poland’s highest judicial body.
According to Amnesty International, judges in Poland are “experiencing political pressure” in connection with the changes, which are said to pose a threat to the separation of powers. There had been speculation that she would be prevented from entering the building, but in the end the only obstacle she had to navigate was a scrum of photographers, reporters, and supporters.
About 5,000 protesters chanting “we are with you” rallied on Tuesday night outside the supreme court in Warsaw in support of Gersdorf, who the law dictates should step down immediately, and other judges affected by the legislation. Prof Małgorzata Gersdorf, the president of Poland’s supreme court, has spent most of her career as an academic lawyer. She has only served as a judge for 10 years, having been appointed to the supreme court in 2008 after three years as a legal adviser to the court.
Gersdorf has described the lowering of the retirement age for judges from 70 to 65 as a purge. Born in 1952 in the leafy northern Warsaw suburb of Zoliborz, where she still lives, Gersdorf studied at the university of Warsaw, receiving her doctorate in 1981, the year martial law was imposed by the Communist regime.
“There will be a purge of the supreme court conducted under the guise of retirement reform,” she said. A specialist in labour law, Gersdorf joined the famous Solidarity trade union in 1980 and remained a member until 2005, long after the collapse of communism in Poland. Her appointment to the supreme court was approved by Lech Kaczyński, the late twin brother of Law and Justice leader Jarosław Kaczyński. Three years older than Gersdorf, the Kaczyński twins also grew up in Zoliborz, where Jarosław also still lives.
Protesters have vowed to assemble at the court when Gersdorf comes to work along with other judges on Wednesday morning. The former president and anti-communist icon Lech Wałęsa will join them, the Polish Press Agency reported. As a symbol of judicial resistance to the Law and Justice party’s attempts to dismantle Poland’s democratic institutions, Gersdorf has at times proved a disappointment to the government’s most ardent opponents, showing an open willingness to fight at times, and an apparent inclination to negotiate and even accommodate government demands at others.
Gersdorf has said she will defy the law, which would cut short her constitutionally guaranteed six-year term, which is due to end in 2020. But supporters point out that she has found herself in an unprecedented situation that no academic training or judicial experience could have prepared her for: to act as the last line of defence of the sanctity of the law, while refusing to engage in politics or undermine the dignity of her office.
“The constitution gives me a six-year term,” Gersdorf told lawmakers in parliament after meeting the Polish president, Andrzej Duda. “I’m not engaging in politics; 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,” she told those gathered outside the court on Wednesday morning. “I hope that legal order will return to Poland.”
Gersdorf, 65, said she would go to work on Wednesday and “later I am going to go on vacation”. She named a temporary replacement, Józef Iwulski, to stand in for her during her absence, said Michał Laskowski, a supreme court spokesman. In July last year, Poland’s ruling Law and Justice party (PiS) proposed legislation that would have instantly dismissed all supreme court judges other than those permitted to continue to serve by the minister of justice. The proposals sparked mass street protests, prompting the Polish president, Andrzej Duda, a former member of PiS, to veto the legislation. A few months later, Duda made his own proposals that envisaged lowering the supreme court retirement age from 70 to 65.
But Paweł Mucha, a presidential aide, said Gersdorf was “going into retirement in accordance with the law”, which took effect at midnight on Tuesday, and insisted the supreme court was now “headed by Judge Józef Iwulski”, who was chosen by the president. The legislation was passed by the Polish parliament in January, and came into force in April. The law gave supreme court judges over the age of 65 – approximately 40% of the total, and including supreme court president Gersdorf, who turned 65 on the day that parliamentary proceedings on the legislation began – three months to apply to president Duda for permission to continue their service. That three-month period expired on Tuesday.
The government has refused to back down despite the EU legal action, insisting the changes are needed to tackle corruption and overhaul the judicial system. Of the 27 judges affected, 16 made applications to the president to remain in post, whilst 11 judges, including Gersdorf, refused to submit applications on the grounds that the legislation contravened constitutional guarantees of judicial independence and explicit provisions in the constitution guaranteeing the six-year term of office of the supreme court president. The government already has control of the national council of the judiciary, the body that appoints judges.
More than a third of the court’s 73 judges are affected. Under the law, the judges can ask the president to prolong their terms, but he can accept or deny their requests without giving a reason. On Tuesday, a defiant Gersdorf gave a speech to students at the university of Warsaw describing the law as “a purge of the supreme court conducted under the guise of retirement reform.”
Sixteen judges have made requests, according to Polish media reports. “A certain era of the judiciary and of the supreme court is ending, as well as its organisational independence and competence,” she said. “My term of office as first president of the supreme court will be brutally stopped – a term of office that is enshrined in the constitution.”
The European commission said the changes would undermine “the irremovability of judges” and judicial independence in Poland, breaching the country’s obligations under EU law. Her speech came on a day of confusion, as Duda’s administration and the supreme court offered conflicting accounts of the outcome of a meeting between Duda and Gersdorf on Tuesday. Gersdorf nominated supreme court judge Józef Iwulski, 66, as interim president of the court in the event that she is unable to carry out her duties. But after the meeting, a presidential aide suggested that Iwulski would be taking over from Gersdorf immediately, a suggestion that was rebuffed by a spokesperson for the supreme court. On Wednesday, Iwulski himself denied that he had taken over from Gersdorf.
Poland has a month to respond to the commission’s formal announcement, and the dispute could end up in the European court of justice. The court that would normally be called upon to resolve constitutional disputes between state organs, Poland’s constitutional tribunal, was taken over by Poland’s ruling party at the end of 2016 after a similarly bitter struggle, and is no longer regarded by the supreme court as a legitimate legal actor. Speaking to the Guardian last week, Gersdorf described the tribunal in its present guise as a “facade”.
In December, Brussels triggered article 7 proceedings against Poland over “systemic threats” to the rule of law. This could lead to Warsaw’s EU voting rights being suspended. The government has accused the judges of involving themselves in politics, arguing that they should respect the will of the Polish parliament. “Just like every Pole, President Małgorzata Gersdorf is bound by the law, which she should follow,” said a spokesperson for the justice ministry earlier this week.
But critics say that to allow the government to use legislation to curtail constitutionally-protected terms of office would have serious consequences that go beyond the judiciary. “The constitution states that a presidential term lasts five years, but in an analogous application of the law, we could also pass a statute to shorten the term of the president, of parliament, of the senate, of the human rights ombudsman. It’s absolutely unacceptable,” Marek Chmaj, professor of public law and human rights at the university of social sciences and humanities in Warsaw, told news station TVN24.
According to Amnesty International, judges in Poland are “experiencing political pressure” in connection with the changes. Last month, the Guardian reported that judges involved in politically sensitive cases or who have expressed opposition to threats to judicial independence have been threatened with disciplinary proceedings and even criminal charges, and in many cases are subjected to allegations of corruption and hate campaigns orchestrated by leading PiS politicians.
On Monday, the EU launched legal action against Poland relating to the law, the latest salvo in a bitter battle over judicial changes critics have decried as unconstitutional. The government has refused to back down, insisting the changes are needed to tackle corruption and overhaul the judicial system. Poland has a month to respond to the commission’s formal announcement, and the dispute could end up in the European court of justice.
Speaking in the European parliament, Polish prime minister Mateusz Morawiecki contended that changes to the retirement age of judges brought Poland into line with other European countries. He also argued that critics did not understand “central European realities” and that judicial changes were part of an effort “to throw off the post-communist yoke”.
Morawiecki said: “Every country has a right to set up its own legal values with its own traditions.” He described his government as leading a European “democratic enlightenment” and added: “You can call it populism, but, sooner or later, the following question must be asked: is meeting the expectations of our citizens truly populistic or maybe – it is the essence of democracy.”
Additional reporting by Jennifer Rankin and Agence France-Presse
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