The Supreme Court of Poland is supposed to definitely settle legal disputes, set up lines of judgement and decide on the validity of elections. Its role is to rule, define justice and not to fight a duel between authorities. Małgorzata Gersdorf's term at the Supreme Court was an important safety break for the rule of law in Poland.
A wave of citizens’ protests in front of the Supreme Court building has become the Polish specialité de la maison. The unique scale of the protests, not only within Europe but also for the rest of the world, gave reason to lawyers and citizens to feel proud.
“This is our court”, the inscription displayed on the building brought relief. Thousands of burning candles, a moment of silence and darkness falling over Warsaw.
This is how the Supreme Court looked like in the summer of 2017. The postcard sent to the world was still carrying an optimistic message. Now, it is spring and three years have passed. If you light a candle today, it is to the independence of the courts and the former role of the Supreme Court.
She who defended the institution
Professor Małgorzata Gersdorf, appointed as First President of the Supreme Court, has had an academic and legal professional career behind her. She was even, for a short time, legal advisor to the Supreme Court.
Gersdorf was to represent and defend the institution before the courts in disputes with other entities. For this activity, she spent almost her entire term as the court’s president.
Half of Małgorzata Gersdorf’s 12-year career comprised being a judge of the Supreme Court. At the president’s office, she was in a more or less continues clash with other authorities.
The term of the president of the highest court in Poland, however, resembled a ten-round boxing match since the elections in November 2015. As it befits a judicial authority – the game was unresolved. This duel was both a noble fistfight and a brutal brawl.
The first rounds of the boxing duel have become in the eyes of the audience a classic exchange of blows and mutual recognition. The fight was uneven from the beginning – which is mostly an understatement.
In the blue corner, with the inscription “Supreme Court”, there were a number of other personas apart from the first president. For instance, the President of the Criminal Chamber of the Supreme Court – Stanisław Zabłocki – who is an icon of the bar and a model lawyer. In this corner, we also see the spokesperson of the court, judge Michał Laskowski.
The red corner of the “ruling party” rather resembled a car wash in rush hours. Who was not there? Only good lawyers as those from the blue corner were missing.
The red corner had access to a doctor, doping agents, duel referees. It could change the rules of the fight during the rounds. This corner could even organise castings for the next Supreme Court judges.
The result of the fight was too easy to predict. No bookmaker would risk taking bets on this fight. The example of the takeover of the Constitutional Court of Poland was too significant.
Strive for the knock-out
Therefore, already in the break after the first round, it was clear that the opponent, like any self-respecting fighter, would not limit himself to threats and thrash-talk announcing a knockout in the first round.
The red corner strived for a knockout, in all possible ways. Also, by means outside the ring. In the public space. The court was hit hard by public opinion, under the influence of the government.
Hence, already in the second round of the duel, the Supreme Court was being counted for the first time.
It was July 2017. The Supreme Court of Poland was supposed to change its organisation by appointing new chambers, new judges and pushing part of the current staff into retirement. These provisions were included in one of the laws that were to change the judiciary. The National Council of the Judiciary and common courts were also prepared for the change.
The public so far was restrained in its support for the fighter from the blue corner, because it felt that the outcome of the fight could happen much earlier. It was too early.
The moment the changes were announced and awaited the signature of the president of the Republic of Poland, the previously unknown protests appeared in the public space. In front of the Supreme Court building and other many courts in Poland, citizens appeared in crowds. With candles to light up the darkness falling over the justice system.
President Andrzej Duda, probably surprised by the course and size of events, did not sign two out of three court acts. This round of the duel was won by the judges.
It was the opponent, in front of the crowds, who was counted after being knocked down. It is worth mentioning that these two vetoes of the President are almost a quarter of his objections to laws – in total, he refused to sign nine laws – during his term of office.
But the work at the “green table” continued. There was another amendment to the regulations. This was adopted by the Sejm and signed by the president in November 2017.
On the basis of the amendment, 30 judges out of 76 (almost 40 per cent of the cast), including Małgorzata Gersdorf, were to leave the Supreme Court. The retirement age had been lowered again.
Day of independence
4 July 2018 was not only the day of the anniversary of US independence. Also, it turned out to be the day of independence of the Supreme Court. Despite the regulations that brought Małgorzata Gersdorf to a state of retirement, she appeared in the court building, after she was previously greeted by crowds of people.
Another count for the opponent, despite a hail of blows inflicted by the government. But there was a counterattack and a triumphant return. The classic beauty of boxing.
As a result of a later ruling by the European Court of Justice, the government was forced to recognise that a change in the law providing for a forced retirement of judges was impossible. Such action is directly contrary to the rule of law. Once again, the ruling camp was reminded of the essence of power-sharing with checks and balances.
Małgorzata Gersdorf’s term of office ended on 30 April 2020. She stayed in office until the last bell sound. I do not feel comfortable reporting her cadence as a continuous exchange of blows in a square limited by ropes.
But I can’t help feeling that it was a continuous fight in a boxing ring. One boxer fighting in a fair manner while an opponent uses dirty tricks. Not just boxing, but mixed-martial-arts when needed.
Her perseverance during this fight, over the last few years, is for me a success of the rule of law and embodied by the Supreme Court.
I’m writing this text on the second day of the assembly of the Supreme Court judges to select the successor of President Małgorzata Gersdorf. After a dozen or so hours of deliberations, not even a ballot counting committee was appointed. Just a meeting of almost a hundred lawyers.
It cannot be successful, it cannot be short.
Only punch injustice
It is not the job of judges to inflict and parrying punches. After all, they were not called to fight and they are not punchers. They may only punch injustice.
The Supreme Court of Poland is supposed to definitely settle legal disputes, set up lines of judgement and decide on the validity of elections. Its role is to rule, define justice and not to fight a duel between authorities. The other authorities must understand and respect the political position of the court.
Not only when ruling, but also in opposition. Forcing judges to fight for the rule of law is the beginning of the end of democracy.
Some of the public statements and actions that were taken by Małgorzata Gersdorf have attracted well-deserved criticism from judges and citizens. I would mainly submit them to the exceptional circumstances in which she came to hold office.
However, I have no doubt that her attitude and consistency in her attachment to universal values allows her to assess the Supreme Court during the period 2014-2020 as the most important safety brake on an authoritarian train. A train driving Poland into the unknown.
This article is part of the #DemocraCE project. A Polish version will soon be available on Res Publica Nowa.