Polish supreme court rebel faces down government on reform

Malgorzata Gersdorf, Poland’s supreme court first president, emerges from her office wearing a black dress and pearls. Because of a funeral, she says quickly. The 65-year-old is not mourning Polish judicial independence – at least not yet.

“If I admitted that I would be admitting my own failure,” she says, suggesting I leave my phone outside her office. If I bring it in, she says in a matter-of-fact tone, “our conversation may be tapped by the security services”.

It’s just another day at the office for a woman who, on paper at least, retired last July thanks to a new law obliging her and other supreme court justices over 65 to go.

But Prof Gersdorf dismisses the law as unconstitutional and, every weekday morning, reports for work. Her strong-willed stance has made her a hero for Poland’s opposition and a hate figure for the government.

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“The executive power is of a different opinion and I cannot hide that I may be removed by that authority,” she says.

On Wednesday, Polish president Andrzej Duda appointed new justices to her court in defiance of a court injunction.

It’s another twist in a Polish drama that is no dry legal dispute, but a high-stakes battle over the rule of law that restricts arbitrary use of power by the executive through an independent judiciary.

This is a cornerstone of all democracies, including Poland’s, and non-negotiable for EU membership.

Legal action by the European Commission is now under way and, unless a compromise is found, Poland risks skidding into a legal and political limbo.

The row has been building since 2015, when Poland’s national conservative Law and Justice (PiS) party secured an absolute majority and embarked on major reform of state television, the public prosecutor and the judiciary. Court structures and case procedures were revamped along with judicial appointments and the statutory body behind them.

Reforms ‘necessary’

PiS says the reforms were necessary and overdue, to remove encrusted structures – and personnel – from the communist era and its aftermath. Critics argue that the reforms all have the same end: to secure PiS control over all pillars of Polish life.

Of greatest concern are judicial reforms which, critics argue, will create biddable courts that are neither willing nor able to challenge legislation or legislators.

First PiS filled the constitutional tribunal with political allies, now its reforms are tied up in legal knots in the supreme court. Many judicial positions are vacant and Gersdorf describes recent amendments to supreme court law procedures – five and counting – as a constant flow of “legal diarrhoea”.

To government claims that its reforms have made Polish courts more efficient, she has a one-word verdict: “Lie.”

“These changes have slowed down proceedings considerably,” says Gersdorf.

Polish lawyers no longer know what laws apply – pre- or post-reform – and which judges to heed. And the judges themselves? “They try their best,” she says. “But for a long time now you cannot say we have had legal certainty.”

Supporters see attempts to remove her and other judges from office as a campaign by PiS to silence independent voices critical of the government.

In a sustained campaign, PiS politicians have painted Polish judges as an arrogant elite, and parliament as the true representative of the Polish electorate’s sovereign will. In this Poland, checks and balances are moot.

“No government likes judges but they tolerate them,” she argues. “They understand it is important to balance executive authority. I think [this government] plays to the gallery and wants to be the sheriff.”

Chilling effect

Its other reforms include an overhauled court appointments body, with greater say for parliament, and a new disciplinary chamber for judges at the supreme court. Gersdorf say its appointees, many linked to the minister of justice, may have a “chilling effect”.

For legal observers around Europe, attacks on judges and attempts to bring them to heel are an attack on the fundamental – non-negotiable – separation of powers.

The principle of mutual legal trust that underpins the EU is unravelling. Ireland’s High Court has questioned the independence of Poland’s reformed courts in a case involving the extradition of a Polish national on drug charges. Similar concerns have followed from Spanish and Dutch courts.

Gersdorf declines to comment on the Irish case but is “sorry to say that judges may not be independent in some cases that are important for the authorities”.

She is heartened by shows of concern from EU colleagues and the European Commission. It remain to be seen if, in the final reckoning, EU leaders will be as principled in facing down their Polish counterparts.

Rule of law

For now the row has boosted Polish support for the EU, she says, encouraged people to read their constitution and understand how hard-won democratic principles are not a given.

“We need to teach everyone about the rule of law,” she says. “That is something we have neglected in the last . . . years.

Gersdorf has personal experience grappling with an undemocratic regime, as founding member of the Solidarity trade union at the University of Warsaw in the 1980s.

Three decades on, she feels privileged to lead the fight for independent Polish courts and, in a wider sense, Polish democracy.

“I am so proud to be here in this historic moment. I think anyone in my place would behave the same way,” she says.

Does her high-profile battle come at a human cost? “The cost,” she says calmly, “is a sleeping pill.”