Supreme Court Defies Polish Government in Battle Over Judiciary

(Bloomberg) -- The battle for control over Poland’s judiciary intensified as the Supreme Court ruled to suspend a law that would force out two-fifths of its justices and asked the European Union’s top tribunal to decide if the measure adheres to the bloc’s rules.

The decision by a seven-member Supreme Court panel escalates the struggle for control over the judiciary in the ex-communist country of 38 million people, where the ruling Law & Justice party has clashed with the EU by pushing through sweeping measures that give politicians more control over courts. It also has implications for other countries in the 28-member trading bloc, which is wrestling with how to handle members that are challenging its democratic standards.

President Andrzej Duda, who signed the ruling party’s contested judicial legislation into law, said the Supreme Court’s verdict was “baseless” and wouldn’t impede government efforts to reshape the judiciary.

“In Polish law, there is no basis for a verdict” suspending binding regulations, according to a statement on the presidential website, which didn’t mention the European Court of Justice. “Today’s actions constitute an attempt by the Supreme Court to bypass the law that governs it.”

One front in the battle over Poland’s judiciary is between the government and the Supreme Court, where Chief Justice Malgorzata Gersdorf and nearly 30 other justices are set to be forced out via mandatory retirement under a law passed by Law & Justice. The second is between Poland and the EU, which is mulling unprecedented sanctions -- possibly including cuts in development aid -- over the country’s alleged failure to uphold democratic standards.

Political Failure

After more than two years of failed political dialog aimed at finding a compromise, the Supreme Court’s decision may be an inflection point in the battle over what constitutes judicial independence, forcing the European Court of Justice to come down on one side of the argument.

The Supreme Court asked the Luxembourg-based EU tribunal to answer five questions about Law & Justice’s changes to the judicial system, including whether they breached rules regarding judges being irremovable, discriminate on the basis of age and whether they give the executive branch too much say over courts.

“According to the law, this decision should stop further actions” by the government regarding the replacement of Supreme Court justices until the top EU court gives its verdict, the Supreme Court’s spokesman, Judge Michal Laskowski, told reporters in Warsaw.

The ruling was made in response to a legal query to the court’s chamber dealing with labor and social-security issues. Laskowski said one of the judges that issued the verdict was at least 65 and subject to a process that will determine if he can continue at his post.

Judicial Fairness

The zloty traded 0.2 percent weaker against the euro and Warsaw’s main stock index dropped 1.4 percent on Thursday, both weakened mainly by external factors including Turkey’s sinking currency and concerns over further U.S. rate increases.

A month ago, the EU’s executive took a first step toward a possible lawsuit against Poland, the biggest net recipient of funds from the bloc’s budget, over the court revamps. In a bid to pre-empt the European Commission’s decision to involve the European Court of Justice, which could issue an injunction, Law & Justice passed a law last month to facilitate the replacement of Gersdorf. It now views her as retired even though her six-year term ends in 2020.

The government says deep changes are needed to restore a sense of judicial fairness to ordinary Poles. On the other hand, the EU and pro-democracy watchdogs say the reforms not only break the bloc’s rule-of-law standards, but that they may also lead to a spike in corruption.

©2018 Bloomberg L.P.