An open rebellion by members of the Constitutional Tribunal came days after the government began a purge of the Supreme Court.
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| © Jacek Turczyk/EPA, via Shutterstock Opponents of the Polish government’s changes to the country’s judicial system protest in front of the Supreme Court in Warsaw on Wednesday. Opponents of the Polish government’s changes to the country’s judicial system protest in front of the Supreme Court in Warsaw on Wednesday. |
By MARC SANTORA, The New York Times
WARSAW
For days, tens of thousands of Poles have marched in the streets to protest their nationalist government’s purge of the Supreme Court, an action that has been condemned by the European Union as a threat to the rule of law in a country that led the struggle against Soviet domination in 1989.
[post_ads]The crisis over judicial independence in Poland took a new turn on Thursday, when nearly half the judges on the country’s other top court, the Constitutional Tribunal, said its workings had become politicized and dysfunctional, casting into doubt the validity of crucial rulings it had made over the last two years.
aken together, the purge of the Supreme Court and the open rebellion within the Constitutional Tribunal underscored the tensions over the future of the rule of law in a nation that once represented post-communist hopes for democracy but that is now under the grip of an increasingly authoritarian — though legitimately elected — government.
Lech Walesa, the Nobel laureate and former trade union leader who served as president of Poland after the fall of communism, has warned that the confrontation over the judiciary could lead to a “civil war.”
On Thursday, seven of 15 members of the Constitutional Tribunal — which the nationalist governing party had stacked with its own jurists — signed a letter declaring that the body had ceased to function properly under the leadership of its current president, Justice Julia Przylebska. They called into question cases involving a variety of topics, from state surveillance to the judicial reforms themselves.
The letter was first reported by a journalist, Tomasz Setta.
Echoing the criticism of outside legal experts who have warned that the once-impartial tribunal had become increasingly politicized, the judges declared that the naming of panels of judges to hear and decide cases was, in essence, rigged to predetermine decisions.
Even one judge appointed by the ruling party, Law and Justice, signed the letter, an extraordinary public denunciation, which was made public on Thursday.
“It is quite extraordinary to see members of a court so outraged by the behavior of their leadership to issue such a letter,” said Sarah H. Cleveland, a professor at Columbia Law School and a member of the Venice Commission, which is responsible for monitoring rule of law issues for the Council of Europe, a human rights body.
That commission warned in 2016 that changes being made to the tribunal would undermine democracy, human rights and the rule of law.
This week, with the forced retirement of up to 27 of the 72 Supreme Court judges, judicial independence may now be extinguished.
The government says the reforms are all intended to make the courts more responsive to the will of the people — and to free the judiciary from corrupt judges or communist-era holdovers.
But critics see the end of the judiciary’s functioning as a check on power — and a violation of the liberal democratic norms that are required of members of the European Union, which Poland joined in 2004.
Tens of thousands of angry protesters have taken to the streets in recent days across the country to oppose the ruling party; the emotion that was on display is only fully understood when the latest moves are put in the perspective of the long fight that has been waged in Poland.
The purge of the Supreme Court was the culmination of nearly three years of a systematic effort to reshape the entire judicial system.
Unlike in the United States, where the Supreme Court has the final say in all matters of law, including the interpretation of the Constitution, Poland divides the responsibilities between its Supreme Court and its Constitutional Tribunal.
When Law and Justice came back into power in 2015, it was the tribunal that politicians targeted first.
That hardly came as a shock, since the party’s leader, Jaroslaw Kaczynski, had once described the tribunal as “the bastion of everything that is bad.”
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But the speed at which they moved surprised some observers.
The Stefan Batory Foundation, a nonpartisan group dedicated to promoting civic virtues, outlined what happened in a report released in May.
“The government checkmated the tribunal’s majority in three moves,” the authors wrote. It refused to seat judges appointed by the previous party, installed its own judges and then refused to recognize the rulings of the court until its majority had been installed.
“The Constitutional Tribunal was turned from a guarantor of the constitutionality of laws into a hapless bystander within a few weeks,” the report said.
When the term of the tribunal’s president ended, all of the judges were supposed to choose a replacement. But the Parliament passed a law that created a position not foreseen in the Constitution itself: an “acting president of the Tribunal.”
President Andrzej Duda chose Justice Przylebska for that job.
She quickly brought in three judges previously rejected by the court, and she moved to immediately reconfigure how panels of judges were selected to sit on specific cases.
This selection of new judges drew the most ire in the protest on Thursday.
In their letter, judges accused Justice Przylebska of selectively assembling panels to hear cases in ways that “manifestly deviate” from “the statutory standard.”
Specifically, they echoed the criticism that when it comes to highly sensitive cases, judges are selected based on party loyalty, calling into question the validity of scores of decisions over the past two years.
Justice Przylebska took to state television on Thursday to defend herself and the court. “All those stories about its nonfunctioning, about it being some sort of facade, about the illegitimately appointed president of the Tribunal,” she said, “are simply gibberish.”
But the fight over the Supreme Court highlighted how the tribunal has lost the faith of many Poles.
At the heart of the purge is a constitutional matter: The First President of the Supreme Court is guaranteed a six-year term.
[post_ads]The ruling party, however, wrote legislation lowering the retirement age to 65 from 70, forcing some 27 judges to retire (unless they get a reprieve from the Polish president).
Justice Malgorzata Gersdorf, the court’s president, refused to retire, calling the change in the retirement age unconstitutional.
Normally, it would be a matter for the tribunal to decide. But Justice Gersdorf said in an interview last week that she lacked faith in that institution. She and several colleagues hope that the European Court of Justice will now step in to stop the purge.
On Monday, the European Commission referred the case to the European court, which gave Poland one month to make its case.
However, the justice minister, Zbigniew Ziobro, said on Thursday that the government would move ahead with naming replacements soon.
And he suggested that it might disregard any ruling of the European court.
“I am convinced that the Court of Justice of the European Union is neither competent nor proper and thus may not make statements on the judiciary reform in Poland, or any other E.U. country for that matter,” he said.
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