In 2017, as part of a broad initiative to weaken the judiciary, the Polish parliament, then controlled by the Law and Justice party, swiftly adopted a law that lowered the retirement age of judges from 70 to 65. According to the law, judges who reached the age of 65 were required to retire immediately, unless they received the president’s approval to continue serving.
This law was expected to have a dramatic impact on the Polish judicial system, particularly on the composition of the Supreme Court, where nearly 40% of the judges had crossed the new age threshold. Among them was the first president of the Supreme Court, Malgorzata Gersdorf, who was due to serve until 2020.
Gersdorf repeatedly warned of the steps the ruling party was implementing to take over the judiciary. She clarified that the so-called “reform” of the judicial system was not what it appeared to be, and that if the government succeeded in its efforts, the judiciary could become “a silent extension of the will of the executive.”
After the law lowering the retirement age came into effect, Gersdorf announced that she would continue to arrive at her office as usual, but added: “Whether I will be let in is another matter.”
Sound familiar?
Undermining democracy in Israel
Last week, the Israeli justice minister ordered the locks changed at the Tel Aviv office shared by Attorney-General Gali Baharav-Miara, making clear once again: The government (and the justice minister, in particular) have studied well the “Polish script” for taking over the judiciary and undermining democracy in the country. Yet, the Israeli case appears even more extreme.
In Poland, Gersdorf was not physically barred from her office, but in Israel, a physical blockade was actually implemented. This action flagrantly and blatantly violates the Supreme Court’s interim order, which explicitly prohibited both the dismissal of the attorney-general and any changes to the working arrangements between the government and the attorney-general.
Despite the effort to remove her from office, Gersdorf continued to serve as chief justice of the Supreme Court in Poland until the end of her term in 2020. She took a critical and uncompromising stance against the government’s attempts to weaken the judiciary, emphasizing that this was not political interference, but a defense of the rule of law.
She made it clear that continuing her tenure was not a choice, but a fulfillment of her public duty to protect the constitution and the law in the country. Her completion of the term was made possible not only due to her determination, but also thanks to ongoing public pressure and the mobilization of Supreme Court justices who stood by her with a clear voice.
Attempts to erode the rule of law
Ultimately, the steadfast stance of the Supreme Court and of Gersdorf against the government was not enough to preserve the independence of the Polish judiciary. The government succeeded in passing various measures to weaken the judicial system. Nevertheless, Gersdorf remaining in office managed to delay some of the steps. To this day she is seen as a symbol of resistance in Polish public life.
The failure to preserve judicial independence in Poland, despite firm resistance, illustrates that the move made by the Israeli justice minister constitutes a critical test.
Blocking Attorney-General Baharav-Miara from accessing her office is neither a curiosity nor a minor incident. It is a serious, unprecedented event, clearly marking an escalation in attempts to erode the rule of law. Precisely for this reason, this moment requires a strong and swift response – from the public, legal professionals, the judiciary, and professional bodies.
The writer is a researcher at the Israel Democracy Institute’s Democratic Values and Institutions Program.