Why this story matters:
The separation of powers into three branches -- a legislature, an executive, and a judiciary -- is the foundation of most democracies worldwide. It is designed to prevent any concentration of power that can lead to autocracy.
This scenario has just become Poland’s reality.
Through this new bill -- and with the support of the Parliament -- President Andrzej Duda is expropriating control over the Supreme Court. It is a prerogative that is not granted to him by the Constitution. He is thus putting himself above it.
The recent events open a new chapter in the story that began in November 2016, when the government took over the Constitutional Tribunal -- a court that resolves constitutional disputes between state organs. Then followed a bill on common courts which granted the Minister of Justice unprecedented control over the heads of regional courts.
Now the time has come for high-ranking heads to fall. The Supreme Court serves as Poland’s highest court of appeal in all civil and criminal cases. It is also responsible for verifying the validity of elections -- a key prerogative given that the ruling party intends to change election law.
Seizing the Supreme Court is synonymous with the end of an independent judiciary in Poland.
Details from the story:
- The Polish Constitution regulates the length of the First President’s of Supreme Court term of office -- 6 years. Accordingly, the current president, Prof. Małgorzata Gersdorf, should remain in office until 2020. The Constitution also states that judges are irremovable.
- The presidential bill, which came into force on March 31, lowered the age of retirement of the Supreme Court judges from 70 to 65 years old. Hence, it forces 27 out of the 81 judges -- including Gersdorf -- to early retirement.
- Those wishing to remain in office had three months to apply to President Duda for permission. That three-month period expired last Tuesday. 16 of the judges did so, while 11 refused, Gersdorf among them. They believe that the presidential bill violates both of the above mentioned provisions of the Constitution -- without justification, since legally the President is not above the Constitution.
- Małgorzata Gersdorf is the first woman who has ever served as the head of the Constitutional Court in Poland. She quickly became the face of this crisis -- somehow unwillingly, since she adheres to the principle that judges must be apolitical. The new bill put her in an impossible position. Leaving office would mean going against the Constitution, remaining -- opposing the President of Poland.
- On Wednesday July 3, she showed up to work as usual, choosing to remain loyal to the Constitution. “I’m not engaging in politics,”she told the crowd of supporters that gathered outside of the Court on Wednesday. “I’m doing this to defend the rule of law in Poland.”
- However, as of today Gersdorf is on holiday. It is unclear whether this is an effort to gain time and if she plans be return to office.
- Another alarming aspect of the bill is that it extends the number of judges in the court to 120. They will be appointed by the National Council of the Judiciary, controlled by the government. In practice, it means that the new judges supported by PiS would be a majority in the court.
- Last Monday, the European Commision announced its intention to take the Polish government to the European Court of Justice over this bill.
- Poland has thus the questionable honor to become the first EU member state subject to a hearing over the strength of its democratic institutions.