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Walls of the World: The rising tide of East vs. West, Church vs. State in Poland (3)

First President of the Supreme Court of Poland Malgorzata Gersdorf, who continually refused far-right political party Law and Justice's calls for her resignation, speaks with the Mainichi Shimbun, in Warsaw, Poland, on Oct. 31, 2018. (Mainichi/Koki Miki)

WARSAW -- "I will be defending (the Constitution) always, acting according to the constitutional rules, and no one has released me from this obligation," said First President of the Supreme Court of Poland Malgorzata Gersdorf, 66, in an interview in the capital here with the Mainichi Shimbun.

"So the bill cannot change my status... because this is regulated directly in the Constitution, and I have sworn for this Constitution when I started," she continued, firmly. The bill to which she was referring was passed in July 2018 by the far-right ruling party Law and Justice (Prawo i Sprawiedliwosc; PiS) as part of sweeping reforms of the judiciary system. It lowered the retirement age for judges of the Supreme Court from age 70 to 65, and if judges wished to continue in their posts after they reached 65, then they now would need permission from Polish President Andrzej Duda.

Out of the 72 judges on Poland's top court 27 are over the age of 65 -- including Gersdorf. The president belongs to PiS, and the bill is clearly a move by the party to select judiciaries. However, under the Constitution, the head of the top court has a term of six years, and Gersdorf's term lasts until 2020. Even though she has received a demand for her resignation from PiS, she had continued to fulfill her duties by "holing up" in her office and holding her ground.

With the support of priests and others in the Catholic Church, PiS won a single majority in the lower house of the Polish parliament in 2015, and the administration that emerged holds up the changes as "chasing out judges that have served since communist times." They first set their sights on the Constitutional Tribunal, which is involved in making decisions about the interpretation of the nation's supreme law.

Under a new tribunal president appointed by PiS, judges sympathetic to the party became the ones to hand down decisions on constitutionality. As a result, the opposition and citizens groups stopped seeking the judgment of the tribunal, saying that "objective decisions cannot be expected." The function of the Constitutional Tribunal has essentially been suspended.

Next, PiS took control of the National Court Register (KRS), which elects judges. KRS's members had come to be chosen from among judges, but national parliamentary lawmakers including those belonging to PiS changed the system so that they were the ones to choose. In addition, they also established a court within the Supreme Court to decide disciplinary measures for judges. Half of the judges selected to make the disciplinary decisions were prosecutors belonging to the Ministry of Justice. A member of PiS held the post of minister of justice, and with the new system in place, the administration was now able to exert an influence on judge election and discipline.

"The main idea of this ruling party is centralization. They want to control everything, including the courts," criticized former Constitutional Tribunal judge Ewa Letowska, 78. The moves are rooted in happenings during the previous PiS administration from 2005 to 2007. Several government policies were ruled unconstitutional by the tribunal, and it brought on an onslaught of heavy PiS criticism of the judiciary system.

The European Union has repeatedly requested that Poland put a stop to the changes weakening the "rule of law" in the country, but they have all been ignored by PiS. Due to this, the European Commission, the administrative arm of the bloc, filed a complaint with the Court of Justice of the European Union as a "last resort" in September 2018. In October, the court announced a preliminary ruling that requested Poland freeze the lowering of the retirement age for Supreme Court judges.

At first, PiS resisted the decision. However, a corruption scandal centering around a PiS-appointed financial regulator, was subsequently uncovered in Poland in November, and the party's domestic approval rating plummeted. In the end, it was decided to halt the age 65 limit.

Even after ending four months of refusing to badge from her office, Gersdorf is still worried. Along with the other judiciary changes still in place, the "anti-judiciary campaign" developed by PiS has damaged public trust in the nation's courts.

"Reversing this bad image in society will be very difficult and will need to be corrected (over) many years," said Gersdorf. "Politicians will not be in power forever, but the judges will remain."

(Japanese original by Koji Miki, Vienna Bureau)

This is Part 3 in a series.

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