“What is it that makes us trust our judges? Their independence in office and manner of appointment.” The words of John Marshall, Chief Justice of the United States from 1801 to 1835, the longest serving Chief justice in Supreme court history and one of the most influential. And the appointment, or retirement, of judges to Poland’s supreme court, albeit a court of a different function, is the latest battle ground in the continuing conflict between the EU and Poland over the rule of law and what is seen by many as a political attempt to fetter judicial independence.
On Friday the European Court of Justice (ECJ) issued an injunction ordering Poland to suspend the reforms that brought about the early retirement of the judges. On Monday ten of those forced into retirement returned to work, including Malgorzata Gersdorf, the supreme court president, who urged remaining judges to return. A spokesman for the court said they were expected to do so this week.
The ruling Law and Justice party has yet to decide its response but the initial stance of party leader, Jaroslaw Kaczynski, was that Poland would appeal against the decision. On Monday the foreign minister Jacek Czaputowicz said that some judges could return to work and acknowledged that changes to the law would be needed to implement the ECJ decision. However, Stanislaw Piotrowicz, a Law and Justice member of parliament, said that he “did not think that Poland would have to amend anything”. No change there.
For his part, the Polish prime minister, Mateusz Morawiecki, responded to Friday’s ruling by saying: “After analysing this, we will address this.” The Polish government has consistently insisted that it has the right to carry out the reforms which it says are needed to deal with, in its view, an inefficient and sometimes corrupt judicial system which is tainted by the communist past. It has accused judges of being an elite, self-serving clique often out of touch with the problems of ordinary citizens.
Meanwhile, the justice minister, Zbigniew Ziobro, has said that he would like Poland’s Constitutional Tribunal to examine whether lower Polish courts may ask the ECJ for guidance on issues not covered by European law. This came some days before last weekend’s local elections, and led to claims from the opposition that this represented an attempt to bring about Poland’s exit from the EU. “It is not true that my request was an attempt to have Poland leave the European Union,” Ziobro said on Wednesday. Although Kaczyński, said the application of the Polish constitution, and how it was affected by EU regulations, needed to be made clear, he also denied plans to leave the EU.
Cynics will no doubt be amused at the idea of the minister of justice and chief prosecutor – the latter a post which the Polish constitution provides shall not be held by a member of parliament – referring this matter to the constitutional tribunal, the changes to which body started off the conflict with EU in the first place. Again, this illustrates the potential conflict of interest when politicians, however well-meaning, have the power to influence the appointment and way of working of the judiciary.
Be that as it may, not everybody sees democracy as under threat in Poland. According to Cardinal Gerhard Mueller from Germany, no country has the right to lecture to Poland on the principles of democracy because Poland has done the most to maintain democracy in Europe. Speaking at an international conference in Poland, Cardinal Mueller said on Thursday that “no nation can be a teacher of others in Europe” and that “no European institution can impose its values on others,” Poland’s dziennik.pl reported.
The cardinal, who served as the Church’s Prefect of the Congregation for the Doctrine of the Faith from 2012 to 2017, told the conference that “there is a continuing attack on countries that are working to re-Christianise the continent”. Such “attacks” are being driven by “Marxist ideology,” which “denies all those principles that lay at the foundation of Europe,” he was quoted as saying.
In the cardinal’s view, Poland was being targeted through actions such as “teaching Poland about the principles of democracy,” while “Poland is the European country which has done the most for democracy, for freedom, for the self-determination of the nation, for the dignity of the human being.” Referring to the 123 years from partition until independence in 1918, he said: “Poland was divided, there were partitions, but the Polish soul was not affected. Today’s attack on Poland is worse because back then only the body was torn apart. Today the aim is to deal a deadly blow to the Polish soul.”
Not everyone will agree with his analysis, of course, but it will no doubt come as a comfort to the Polish government to have the support of such an eminent cardinal whose message, as reported here in Gift, chimes with the prime minister’s words that Poland’s tradition of solidarity was the country’s gift to Europe.