Poland just purged its supreme court — but the Chief Justice is refusing to step down

The head of Poland's Supreme Court turned up for work Wednesday despite a government edict that removed her from office just hours earlier, deepening a standoff over the conservative government’s purge of the judiciary.

Flanked by hundreds of supporters chanting “Free courts!”, Chief Justice Malgorzata Gersdorf showed up at the Supreme Court in Warsaw in defiance of a controversial new law that came into effect at midnight Tuesday, forcing her and up to 26 colleagues from the bench.

The move by the nationalist Law and Justice-led government has drawn a furious response, with tens of thousands of protesters taking to the streets in dozens of Polish cities and towns. The standoff leaves Poland with two rival claimants for the position of Supreme Court chief justice — and increases tension between Warsaw and the European Union, which has condemned Poland’s accelerating descent towards authoritarianism.

At the heart of the standoff is a new law that brings down the retirement age of Supreme Court judges from 70 to 65. All those 65 and over, such as Gersdorf, were required to step down Wednesday, unless they had been granted permission from Polish President Andrzej Duda to remain in their posts, potentially forcing 27 of the court’s 72 judges — more than a third — from the bench.

While the government argues the reforms are necessary to help fight corruption and boost the court’s efficiency, critics of the move — including Gersdorf and the EU — say it amounts to a purge of the judiciary that will erode the institution’s independence, and result in it being stacked with appointments subservient to the right-wing Law and Justice government.

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In a defiant speech at Warsaw University Tuesday, Gersdorf slammed the new law as “a purge, in the guise of a retrospective change in the retirement age.” She says her six-year term in office — due to end in 2020 — is protected by the constitution, and on that basis has refused, along with 10 colleagues, to apply to continue her term as required under the new law.

“That would mean subordination,” Gersdorf said. “And I cannot agree to this because I need to fulfill what I swore I would.”

Duda said Tuesday another Supreme Court judge, 66-year-old Jozef Iwulski, has already been appointed to fill her position until a new replacement can be voted on.

Piotr Buras, head of the Warsaw office at the European Council on Foreign Relations, told VICE News that “Gersdorf is right.”

“It is an unconstitutional purge,” he said, adding that the ruling Law and Justice party could use its control of the Supreme Court to revoke judgments in lower courts that ran counter to its interests.

“It is a dangerous situation.”

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The retirement law is just the latest broadside on the judiciary from the right-wing Law and Justice party, which has long demonized the country’s judges. Since coming to power in 2015, it has taken control of the Constitutional Tribunal, the body meant to ensure that laws don’t violate the constitution, and made the country’s prosecutors report directly to the Justice Minister.

Each clampdown on the judiciary has sparked protests, and brought the country into direct conflict with the European Union. But the EU is limited in what it can do to rein in a government that is increasingly indifferent to censure, emboldened by the defiant stance of other nationalist, eurosceptic governments in the bloc, such as Hungary.

In December, the EU turned the most powerful instrument at its disposal on Warsaw, invoking, for the first time in its history, Article 7 of its founding treaty over the issue. Under that process, considered the EU’s “nuclear option,” Poland faces being stripped of its voting rights in the EU — but that would require unanimous approval by other member states, and Hungary has vowed to block any such move. The threat failed to convince Poland to back down.

On Monday, the EU also launched legal action against the move which could result in the judicial reforms being referred to the European Court of Justice and declared unconstitutional — but ultimately, they have no power to actually stop them.

"If there is a systemic threat to the rule of law, we cannot simply turn a blind eye," EU Commissioner Valdis Dombrovskis said. "We cannot simply say it is a purely national issue."

In response, the Polish government maintains that the EU has no say over Poland’s justice system.

"Every EU country has the right to develop its judicial system according to its own traditions," Polish Prime Minister Mateusz Morawiecki told the European Parliament Wednesday.

Buras said that while the protests had not reached the scale of demonstrations over the issue last year, they had been instrumental in emboldening Gersdorf to defy pressure from the government to quietly step aside.

“It is a great success,” he said. “Without the popular mobilisation in Poland… nothing of that kind would have been possible.”

While he didn’t believe the protests would spiral into huge anti-government demonstrations, he believed they would continue, and have some impact in signaling public opposition to the new law.

Cover image: Polish Supreme Court Justice Malgorzata Gersdorf attends a demonstration in support of Supreme Court judges in front of The Supreme Court in Warsaw on July 3, 2018. (JANEK SKARZYNSKI/AFP/Getty Images)