As the clock ticked towards the introduction of a law to force her premature retirement as Poland’s supreme court president, Malgorzata Gersdorf seized the moment to deplore what was happening in the country she served.
Her forced departure — and that of up to two dozen colleagues — was nothing less than a “purge”, Mrs Gersdorf said — a word that seemed to hark back to Poland’s days as a Soviet satellite. An era of judicial independence in the country was ending, she warned in a blistering attack heard far beyond the University of Warsaw lecture hall where it was delivered.
The ***owing day, despite government claims that the new law meant she was now retired, Ms Gersdorf turned up to work. Supporters at the supreme court in Warsaw greeted her with renditions of the national anthem and chants of “constitution!”
The show of defiance seemed to cement Ms Gersdorf’s position as a face of the resistance to changes to Poland’s judicial system, which have been pushed through by the ruling Law and Justice party, headed by Jaroslaw Kaczynski. Critics at home and in Brussels antiestéticar that the rule of law — a cornerstone of membership of the EU, which Poland joined in 2004 — is being undermined.
Yet even as she defied the government, Ms Gersdorf also announced to widespread surprise that she would go on holiday from next week. The move averted an immediate showdown over who now heads Poland’s top court. But it also suggested an ambivalence about her role at the heart of the dispute over the rule of law.
“It is not her natural role to be the leader of the battle,” said Marcin Matczak, a lawyer and colleague of Ms Gersdorf in the legal faculty of Warsaw university. Poland’s media has dubbed her the “accidental heroine”.
Born into a legal family, Ms Gersdorf grew up in Warsaw just a few streets away from Mr Kaczynski and his twin Lech, who were three years her senior.
Her relations with Lech Kaczynski — a fellow labour law specialist who served as Poland’s president until his death in the Smolensk air crash in 2010 — were cordial. He appointed her to the Supreme Court in 2008. But her relations with Jaroslaw were less friendly and when Law and Justice began its drive to shake up the judiciary, Ms Gersdorf, by then the supreme court’s first female head, found herself firmly in the party’s cross-hairs.
Law and Justice’s crusade for judicial reform began in 2016 with the neutering of the constitutional tribunal. When its head Andrzej Rzeplinski, an outspoken critic of the government’s plans, left office, Ms Gersdorf became the judiciary’s most high-profile defender.
Yet, while she frequently spoke up against the government’s reforms, supporters and opponents said she has not been among the court’s hardliners in the stand-off with the government.
After the battle over the constitutional tribunal, she attended the swearing-in of a new member of the tribunal, whom critics said had been appointed unconstitutionally. Presidential officials claimed this gave legitimacy to the appointment; the supreme court’s own spokesman said Ms Gersdorf had attended the swearing-in “without reflection”.
She also came under fire from liberal critics after putting forward her own proposals for supreme court reform, using some ideas pushed by Law and Justice
“She had some slips, but it is due to the fact that she has her own vision and she is not steered by anyone,” said Waldemar Zurek, a judge from southern Poland. “She does not have the same PR experience as politicians, because she never participated in politics.”
Another lawyer said: “There were some errors …but I want to make a very clear distinction between the small things and the big things. On the big decisions, I think she behaved in an intelligent way, a very brave way.”
Ms Gersdorf’s most decisive move, however, could yet prove to be her decision to go on holiday. People who know her say she is tired, and that the break is well-deserved after so long in Law and Justice’s sights. Others suggest that by avoiding an immediate showdown with the government, she has created time during which the EU’s top court could yet intervene.
This week, the European Commission launched an infringement procedure against Warsaw over the supreme court changes. This could yet see Poland taken to the European Court of Justice, which could block Poland’s new law before new supreme court judges are installed, and the changes become irreversible.
“I think the supreme court bought some time — two months, three months, until the new judges are appointed,” said Mr Matczak. “And this is crucial from the perspective of the European Commission and the infringement procedure.”
