Supreme Court Rebels Against Polish Crackdown in 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 panel escalates the struggle for control of the judiciary in the ex-communist country of 38 million people, where the ruling Law & Justice party has clashed with the EU over sweeping measures that give politicians more control over courts.

Supreme Court Rebels Against Polish Crackdown in Judiciary

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. After weakening along with most other emerging-market assets on Thursday, Poland’s zloty was little changed against the euro at 9:07 a.m. in Warsaw, while the WIG20 stock index gained 0.2 percent.

President Andrzej Duda, who signed the judicial legislation into law, said the Supreme Court’s decision was “baseless” and wouldn’t impede efforts to reshape the judiciary. In response, the court’s spokesman said that suspending the contested law helps curb the threat of irreversible changes being made before the Luxembourg-based court issues a ruling.

“The Supreme Court’s decision has created a big problem for Duda and the government, whose self-styled crusade against an independent judiciary will now be evaluated by the European Court of Justice,” Marek Chmaj, a Warsaw-based lawyer specializing in constitutional law, told Bloomberg. “This will escalate Poland’s internal and external conflicts.”

Mandatory Retirement

Supreme Court Rebels Against Polish Crackdown in Judiciary

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

After more than two years of political dialog without 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. Law & Justice says it has a mandate from voters to implement deep changes to the court system to restore a sense of judicial fairness to ordinary Poles.

Five Questions

The Supreme Court in Warsaw asked the 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 sway over courts.

President Duda in a statement on his website called the Warsaw tribunal’s verdict an “attempt by the Supreme Court to bypass the law that governs it.” The Chief Justice of Poland’s Constitutional Tribunal Julia Przylebska, controversially picked by the ruling party to the panel that decides on matters of constitutionality, echoed Duda’s comments, telling state newswire PAP that the Supreme Court has no right to suspend the application of law.

“We’re not circumventing any law, we’re just referring a contested regulation to an independent, foreign-based legal body,” Judge Michal Laskowski, the Supreme Court’s spokesman, told private broadcaster TVN24. “There is a full legal basis for this" and the verdict should be respected by the Polish authorities, he said.

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.

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. On Thursday, the foreign ministry said it had “comprehensively addressed the concerns” raised by the Commission, while “pointing out that they are unfounded.”

In a bid to pre-empt the 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, which is written into Poland’s Constitution, is set to end in 2020.

©2018 Bloomberg L.P.