Donald Tusk Gives Green Light for Selection of Neo-Judge as Chair of the Civil Chamber Assembly of the Supreme Court
Donald Tusk has countersigned President Duda's decree appointing a neo-judge as the chairperson of the Assembly of Judges of the Civil Chamber of the Supreme Court, which is tasked with electing a new Chief Justice of the Chamber. “Supreme Court judges are devastated and stunned. They feel betrayed,” comments Krystian Markiewicz, President of Iustitia.
On Tuesday, August 27, the Polish Monitor (Monitor Polski) published a decree by President Andrzej Duda regarding the appointment of the chairperson of the Assembly of Judges of the Civil Chamber of the Supreme Court. The neo-judge Krzysztof Andrzej Wesołowski, appointed by the President, will lead the assembly that will select candidates for the position of Chief Justice of the Supreme Court, overseeing the Civil Chamber of the Supreme Court.
The decree bore the countersignature of Prime Minister Donald Tusk. The judicial circles opposing the judicial reforms implemented by the Law and Justice Party (PiS) reacted with outrage to the Prime Minister’s decision.
What is the issue?
At the end of September 2024, the three-year term of the current Chief Justice of the Civil Chamber of the Supreme Court, neo-judge Joanna Misztal-Konecka, will expire. The regulations introduced by the PiS government are designed to ensure that among the three candidates the assembly of judges must present to the President, there is always at least one neo-judge.
As reported by Mariusz Jałoszewski in mid-August, there have been several attempts to select candidates for the new Chief Justice, but all assemblies have ended in failure. Legal judges are boycotting the elections, unwilling to vote alongside neo-judges, especially given that the President is expected to choose a neo-judge anyway.
The list of candidates for the new Chief Justice includes only neo-judges – Marcin Łochowski, Marcin Krajewski, and Joanna Misztal-Konecka. As Misztal-Konecka is running for a second term, she cannot lead the electoral assembly as the current Chief Justice because she is a candidate herself. Consequently, the President must appoint the chairperson of the electoral assembly, as stipulated by the Supreme Court Act.
However, for the President’s appointment of the chairperson to be valid, it required the Prime Minister’s countersignature. President Andrzej Duda’s decree dates from August 17, and it was published in the Monitor Polski with Donald Tusk’s signature on August 27.
What if there had been no countersignature?
If the Prime Minister had not provided the countersignature, the President would not have been able to appoint the chairperson of the assembly. In such a case, as Joanna Misztal-Konecka’s term would end in September, the duties of Chief Justice would be assumed by the most senior judge heading one of the civil chamber’s departments (also a neo-judge). However, this person would only serve as acting Chief Justice until an assembly could be convened to elect three candidates. This scenario presumed that such an election might occur following a change in the presidency in 2025. In contrast, the Prime Minister’s countersignature paves the way for the election of a neo-judge as Chief Justice for the next three years immediately.
Donald Tusk’s decision to countersign the President’s decree regarding the Supreme Court coincides with the selection of a candidate for the European Commissioner. On August 13, the Prime Minister publicly announced that the government’s proposal would be the candidacy of Piotr Serafin, Acting Permanent Representative of Poland in Brussels. According to the PiS-enacted so-called competency law, the Prime Minister needs the President’s signature for such a proposal. The President’s Office announced on August 16 that Andrzej Duda had agreed to Piotr Serafin’s candidacy. A few days later, Onet reported a confidential meeting between the Prime Minister and the President.
Judges’ Outrage
“The situation is a complete surprise. An extremely negative surprise. Firstly, on October 15, the Coalition Prime Minister appoints a neo-judge to any position together with the President. Secondly, this decision paves the way for the re-election of a neo-judge as Chief Justice of the Civil Chamber of the Supreme Court. Instead of working towards resolving the massive problem with the Supreme Court, Donald Tusk is temporarily cementing PiS’s judicial pathology in the Supreme Court with this countersignature,” said Krystian Markiewicz, President of Iustitia, in an interview with OKO.press.
“Judges of the Civil Chamber have effectively blocked the election of the Chief Justice in recent months. They assumed, as a certainty, that the Prime Minister of a government that talks about restoring the rule of law would not agree to such a joint initiative with President Duda. No one even warned them, no one consulted with them. The Supreme Court judges are devastated, stunned. They feel betrayed. I hope this is only a mistake and not deliberate policy. I hope that talks between the government and the judges will commence soon.”
Supreme Court Judge, Prof. Włodzimierz Wróbel from the Criminal Chamber, also commented on the matter via social media:
“At first, I was convinced this was too improbable to be possible. Yet, it is happening. When politicians took control of the Supreme Court, the President appointed a commissioner from among the neo-judges to conduct the vote for Prof. M. Manowska, whom he intended for the position of First President of the Supreme Court. For the validity of President Duda’s decision, the agreement of Prime Minister M. Morawiecki was required. Of course, there was no issue with this agreement.
But for the current Prime Minister to endorse the same maneuver with his signature, allowing political nominees of the previous government to retain control over one of the most important parts of the Supreme Court?
The President appointed a commissioner to conduct the election of the Chief Justice of the Civil Chamber of the Supreme Court, an illegally appointed neo-judge. Without the Prime Minister’s agreement and signature, such an appointment would be invalid, and President Duda could not appoint another political nominee as Chief Justice of this Chamber for the next three years.
But the Prime Minister agreed, allowing unconstitutional actions by the President. Restoring the rule of law.”
What about the Labor Chamber?
Judicial circles are also wondering what will happen to the Labor and Social Security Chamber of the Supreme Court. It is the last chamber of the Supreme Court where the Chief Justice is not a neo-judge. However, the term of its current Chief Justice, Judge Piotr Prusinowski, ends on September 2.
The candidate for the new Chief Justice of the Labor Chamber, like in the other chambers, should be designated by the Assembly of Judges of the Chamber. However, it has not been convened because the legal judges, who still have the majority in the Chamber, have declared they will not deliberate until there are changes restoring the rule of law in the Supreme Court.
If there is no Chief Justice in the Chamber on September 3, the law stipulates that the position will be taken over by the oldest department head of the Chamber, i.e., legal judge Dawid Miąsik. However, in this case, the President could also pave the way for the appointment of a new Chief Justice. The law amended by the PiS allows the President to appoint a temporary Chief Justice of the Supreme Court to conduct the elections for a new Chief Justice of the Chamber. But, as with the previous case, this would require the Prime Minister’s countersignature. So far, there is no information about an agreement between the Prime Minister and the President.
This article by Dominika Sitnicka appeared in OKO.press on August 27, 2024.