Poland's Top Judge Rings Alarm as Populist Makeover Takes Hold

(Bloomberg) -- As Italy’s new government prepares to challenge the European Union, Poland has a timely lesson for how quickly a particular brand of politics can change a country.

Poland is so far the biggest example of how the sort of populism pioneered by Hungarian Prime Minister Viktor Orban has inspired anti-establishment firebrands across Europe. With the new Italian cabinet’s euroskeptic rhetoric and budget-busting spending plans spooking financial markets, the concern is those tendencies are spreading and will undermine the world’s biggest trading bloc.

Poland's Top Judge Rings Alarm as Populist Makeover Takes Hold

Two-and-a-half years after winning power and setting out to drain the Polish swamp, the Law & Justice party has propelled a deep transformation of the nation’s 29-year democracy. The head of the country’s Supreme Court says that a “terrifying” new system is emerging, where a single party makes all the rules and puts pressure on independent judges.

“Poland is on a path to authoritarian rule and judges are being bullied,” Malgorzata Gersdorf, the chief justice, said in an interview last month. “What can still be salvaged from Poland’s democracy? I don’t know. Maybe the Supreme Court can be safe for some time.”

Unprecedented Conflict

The Supreme Court and Gersdorf herself are at the heart of Poland’s unprecedented conflict with the EU over what the 28-nation bloc’s executive says is an erosion of the rule of law. The government says its efforts to overhaul the judiciary are meant to modernize a justice system weighed down by red tape and the influence of what it calls a self-serving “caste” of communist-era judges.

The standoff has turned the country of 38 million people from a poster-child for eastern Europe’s transition to democracy and market economy to one of the EU’s biggest headaches, while raising the prospect of political sanctions and risking billions of euros in aid.

One of the key measures has the clock ticking on Gersdorf and about 30 of the 82 Supreme Court justices who are 65 or older. By July 3, they must retire or gain special permission from President Andrzej Duda -- an ally of the ruling party -- to work beyond a new mandatory retirement age. Critics say this tramples the constitution, which gives the lead judge six years in office.

Gersdorf wants to stay until her term ends in 2020 and said that giving Duda the right to pick which justices stay active will in practice give him control over the judiciary. Critics, led by former President Lech Walesa, who led the country’s anti-communist movement in the 1980s, turned to the the European Court of Justice for help. They asked for an injunction to block the mass exit of justices, arguing the damage may to irreparable.

The Justice Ministry didn’t reply to requests for comment. Foreign Minister Jacek Czaputowicz said in Brussels last week that the government’s goal is “not to destabilize or politicize the system but to make it more effective and independent.”

Collision Course

The EU executive won’t de-escalate the conflict with Poland if Gersdorf is forced out, according to two people familiar with the European Commission’s stance, who asked not to be named because they’re not authorized to discuss it publicly. Another point of contention is a planned new chamber, to be created within the Supreme Court, which is set to allow challenges to any verdict from the past 20 years, stoking concern it could be used to settle political scores, the people said.

“A revamped Supreme Court will be able to question any ruling and start disciplinary proceedings against the judge that issued it,” Gersdorf said. “Yes, this will have a chilling effect, where judges will fear to give verdicts.”

Some judges are already feeling political pressure. Dominik Czeszkiewicz faced a disciplinary procedure after he dismissed police charges against anti-government activists who’d disrupted a rally. The attempt was eventually dismissed. Beata Morawiec, the former head of a Krakow court, has sued Justice Minister Zbigniew Ziobro for libel after he fired her implying that she turned a blind eye to corruption. Ziobro later said the city’s courts were a “habitat of pathology.”

European Court

Under pressure from Brussels, Law & Justice has recently backtracked on parts of the revamp, while vowing to keep the thrust of the changes. The European Association of Judges called the moves “ineffective in restoring and safeguarding judicial independence.”

The European Court of Justice may have to soon make a ruling on the state of the Polish judiciary as it evaluates a query by an Irish judge whether she can extradite a man to Poland without infringing his rights to a fair trial. The result could trigger a cascade effect as judicial appointments made in breach of rules can be questioned, along with rulings by such judges, Gersdorf said.

“The ruling party has reached a point of no return,” she said. “The EU won’t help if Poles won’t help themselves -- we’ll either live in a democracy or in the authoritarian system which is now being prepared.”

©2018 Bloomberg L.P.