Still supreme

Since coming to power in 2015, Poland’s right-wing Law and Justice (PiS in Polish) government has tightened its grip on the judiciary, most recently the country’s highest court. A law this summer lowered the retirement age for Supreme Court judges from 70 to 65, forcing out up to 27 of its 72 judges. The European Commission has criticised pis’s overhaul, warning that it undermines the principle of judicial independence, including the irremovability of judges. If the Polish government fails to address Brussels’ concerns, Warsaw ultimately risks losing its voting rights in the EU (although, as things stand, that still seems an unlikely outcome).

Among the judges forced into retirement is the Supreme Court’s president Malgorzata Gersdorf, who turned 65 last year. But Gersdorf, whose six-year term formally ends in 2020, has defied pis’s changes and continues to come in to work. Each morning she is greeted outside the court by a crowd of supporters who oppose pis’s politicisation of the judiciary. With a wry sense of humour and a string of beads spelling out konstytucja (constitution) around her neck, Gersdorf sat down with Monocle in her office at the Supreme Court in Warsaw.

MONOCLE: What’s happening at the Supreme Court?
MALGORZATA GERSDORF: What’s happening here is a reflection of what is happening in Poland’s judiciary. As the last bastion of independent courts, the Supreme Court is being shattered by the executive. This makes the national prosecutor, who is also the minister of justice, the most senior judge.

M: PiS claims that judges are corrupt vestiges of the communist era.
MG: Those are lies. The judges are quite young, including here. The Supreme Court was formed anew in 1990, after the collapse of communism.

M: How does PiS’s overhaul of the Supreme Court fit its broader political aims?
MG: It seems to be their primary goal. If courts are dependent on the authorities there is no more division of powers, just the executive. Citizens do not know whether cases will be settled based on the law or based on party assumptions, which is very dangerous. pis is trying to change the political system without changing the constitution, as it lacks the constitutional majority in parliament to do so. Instead it is doing so in an unprecedented way – by force, using its parliamentary majority to pass laws that are unconstitutional.

M: Would you say that Poland can still be considered a democracy?
MG: It’s the hull of a democracy, tending towards authoritarianism. We still have freedom of speech, the ability to protest – though it is being discouraged – and I am still able to meet with you here. Those civic freedoms still exist.

M: Are the changes that have been made reversible?
MG: Certainly. Changes of all kinds have been made and later reversed in Poland, so the country will not remain authoritarian forever. We Poles have dealt with authoritarianism more than once before. The sad thing is that we secured this westward march and these freedoms. Now this is being undone. I cannot understand why the ruling party is doing this.

M: Does the constitution offer hope?
MG: We will always refer to the constitution; it is our fundamental hope. We hope that it will be more widely understood among citizens, who didn’t have to be interested in it until now. Lawyers have it in their blood – norms, constitutions, rules – but people live in the moment, immersed in their own problems. Poles must realise that without the rule of law they will lose their rights as citizens of Europe. We missed an opportunity to educate people, assuming that everyone understands that these freedoms cannot be taken for granted.

M: The PiS-aligned president has said that Poland needs a new constitution. Is this a good idea?
MG: At this moment, definitely not. This constitution has been in place for over 20 years, so some things could be changed but it has passed its test.

M: German chancellor Angela Merkel said that without the rule of law, the EU will cease to exist. Do you agree?
MG: Yes, because the rule of law is the foundation of the unification of Europe. The EU is based on moral and legal rules that must be respected by all its members. If they are not respected, the EU becomes pointless. Some Poles forget that the freedom to travel within Europe and EU subsidies does not come for free. Poland must respect the EU treaties; it is a contract. I have to explain to my students at the University of Warsaw what it was like to live under socialism without a passport. They assume that freedom is granted forever but that is not the case.

M: Can the EU halt the overhaul of Poland’s judiciary?
MG: The EU’s means are limited. The European Court of Justice should answer the prejudicial questions submitted by the Supreme Court as soon as possible. Perhaps that will make the Polish authorities think twice about their destruction of the judiciary. EU procedures take time though. No one will come here with weapons but Poland will face consequences.

M: Some PiS politicians would say it is going back to its roots.
MG: Those are empty words. We must go forward. We must look ahead at how to develop the country, both economically and morally, so that young people can live here rather than move abroad.

M: PiS highlights that it won the elections in 2015. Can the ‘will of the people’ be placed above the law? MG: The law, established according to certain rules, is most important. The state must respect these principles; if it starts ignoring them there will be legal chaos.

M: In PiS’s overhaul of the Supreme Court, what is at stake?
MG: The Supreme Court rules on the validity of elections. Poland has elections to the European Parliament and national parliament in 2019. In the worst-case scenario, the court could rule that the elections were conducted lawfully, when in fact they were not.

M: When communism collapsed in 1989 did you think that something like this could ever happen again?
MG: I never imagined that this could happen in Poland, which freed itself from Russia and joined the West. We are returning to the times of isolation from the West, when the courts were subordinated and power held by the [Communist party’s] Central Committee.

M: What could happen next?
MG: Much will depend on the EU’s decisions. I hope that the Polish government will retreat and resolve the situation at the Supreme Court.

M: Could there be two presidents of the Supreme Court if PiS appoints a new one?
MG: There will never be two Supreme Court presidents. I will be the president until 2020 – the other president would be a “double”. I will not chain myself to the radiator but the ruling party has no right to remove me from office.