Inadmissibility of revocation of countersignature by Prime Minister

This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland

Main theses:

The Prime Minister’s signature on the official act of the President of the Republic (countersignature) is an act whose effects cannot be rescinded.

However, a complaint was filed against his countersignature in one very specific case in order to create a seemingly legal justification for its withdrawal.

The indirect effect was to create a legal ploy to circumvent the law and, in effect, allow a Polish prime minister to abrogate his own responsibility.

The alleged revocation of the Prime Minister’s countersignature was yet another example of his violations of constitutional provisions.

1. Introductory remarks

Among the numerous actions of Donald Tusk’s government that raise legal questions, the question of the permissibility of rescinding the countersignature of the Prime Minister given under acts of the President of the Republic of Poland has been particularly controversial. The issue arose in connection with the Presidential Decision of August 17, 2024, No. 1131.18.2024 on the appointment of the chairman of the assembly of judges of the Civil Chamber of the Supreme Court. It was published in the Monitor Polski with a note on the signatures of the President and the Prime Minister[1]. In it, President Andrzej Duda appointed Krzysztof Wesołowski, unrecognized by some of the judges of the Supreme Court’s Civil Chamber (because of his appointment based on a proposal by the reformed National Council of the Judiciary – see chapter on the National Council of the Judiciary for an explanation), as chairman of the assembly, and Donald Tusk countersigned the act, which drew criticism from parts of the legal community, as well as the left-liberal media. The Prime Minister initially did not speak publicly on the issue, and later claimed that he had signed under the influence of an error by an official of his chancellery who “failed to see the politicality” of the ¨President’s decision. At the time, Donald Tusk still admitted that the signature could not be “undone” or “rescinded.”[2]

The situation changed when two judges of the Civil Chamber of the Supreme Court – Dariusz Zawistowski and Karol Weitz – decided to challenge the President’s decision. To this end, they filed two complaints with the Regional Administrative Court. One concerned the decision itself, while the other concerned only countersignature[3]. Finally, on a social media site, Prime Minister Donald Tusk stated that he had “decided to rescind the countersignature” he had made under President Andrzej Duda’s decision to appoint the chairman of the assembly of judges of the Supreme Court’s Civil Chamber[4]. This was to happen within the framework of a “self-audit”. As Minister of Justice Adam Bodnar maintained, the Prime Minister made “a decision to rescind the countersignature” under “probably Article 54 of the Law on Proceedings before Administrative Courts.”[5] This provision stipulates, among other things, that the authority whose action, inaction or protracted conduct of proceedings has been challenged may, within the scope of its jurisdiction, respond positively to the complaint in full within thirty days from the date of its receipt.

2. The problem of admissibility of a complaint to the administrative court against an official act of the President of the Republic

The first problematic issue is the admissibility of filing a complaint with the Regional Administrative Court against the decision of the President of the Republic of Poland on the appointment of the chairman of the assembly of judges of the Civil Chamber of the Supreme Court. Such an order, as already mentioned, is an “official act.” It is based on the provisions of the Polish Constitution and the Law on the Supreme Court. In the Polish political system, the President has relatively broad powers. These include, among other things, the right to issue official acts, as stipulated in Article 144(1) of the Polish Constitution. From a systemic point of view, these acts can be divided into two groups – presidential prerogatives and countersigned official acts. While the President’s prerogatives are strictly defined (thirty such prerogatives are listed in Article 144(3) of the Polish Constitution), countersignature is required for all official acts of the President not classified by the Constitution as prerogatives[6].

The latter category of official acts includes the President’s decision to appoint the chairman of the assembly of judges of the various chambers of the Supreme Court. This competence derives directly from the provisions of the Law on the Supreme Court. Although this law does not mention the powers of the Prime Minister, it is clear from the constitutional regulations that such a provision requires the countersignature of the Prime Minister. Indeed, Article 144(2) of the Polish Constitution stipulates that “[o]fficial acts of the President shall require, for their validity, the signature of the Prime Minister who, by such signature, accepts responsibility therefor to the Sejm.”

Thus, the legal literature assumes that countersignature in the Polish constitutional model includes three elements – [1] official acts of the President are subject to it, [2] it can only be done by the Prime Minister (and not, for example, by individual ministers), [3] by affixing his signature, the Prime Minister assumes responsibility before the Sejm, i.e. political responsibility[7]. With the countersignature, therefore, the official act of the President of the Republic becomes valid, paving the way for its insertion in the relevant publication[8].

Administrative courts, by contrast, exercise the administration of justice by controlling the activities of public administration and resolving disputes of competence and jurisdiction between local government bodies, local government appeals colleges and between these bodies and government administration bodies. This is determined by Article 1(1) of the Law on the Organization of Administrative Courts. It is also worth recalling the more general constitutional regulation in this matter: “The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration. Such control shall also extend to judgments on the conformity to statute of resolutions of organs of local government and normative acts of territorial organs of government administration” (Article 184 of the Polish Constitution).

Although the President is neither part of the government administration nor a local government body, it is assumed that he can take actions that fall under the concept of public administration. In a resolution of 7 judges of the Supreme Administrative Court of November 9, 1998, ref. OPS 4/98 it was indicated, for example, that “the President, who is not a public administration body, may perform public administration to a certain extent.” At the same time, in the same resolution, the Supreme Administrative Court stated that, even if only by issuing the act of granting Polish citizenship, the President does not perform public administration, since he acts “as the head of the Polish State, symbolizing the majesty of the State.” On the same basis, the Provincial Administrative Courts reject complaints against the action of the President in cases of renunciation of Polish citizenship[9].

Similarly, the Supreme Administrative Court ruled in 2012 regarding the case of judicial appointments as a presidential prerogative: “The appointment of judges by the President is not a power of public administration, but the application of constitutional norms providing for a creative competence that is not an administrative-legal relationship. The President is an executive branch of government, but cannot be considered a public administrative body in this matter. The appointment powers of the head of state demonstrate a special relationship between the President and the judiciary that does not fall within the exercise of administration. Assuming that the President, in shaping the composition of the judiciary, acts, as a public administration body, would clearly violate the principle of separation and balance of powers and the principle of a democratic state of law.”[10]

The rationale for this order made one other important observation. Regarding the appointment of judges of common courts, the Supreme Administrative Court noted that “[t]here can be no doubt that the legal relationship in question is subject to the regulations of the constitutional law. Therefore, it is difficult to clearly qualify the matter of the appointment of judges to substantive administrative law.”[11] Although the appointment of a judge is not the same as entrusting an already-in-office judge to preside over the assembly of judges of one of the chambers of the Supreme Court, both decisions certainly constitute a matter subject to the regulations of constitutional law, not substantive administrative law.

Whether a case belongs to the matter of administrative law also allows verification of the procedural rules to which it has been subjected by the legislator. This way of examining one’s own competence is confirmed by the practice of administrative courts[12]. In the case of naming a judge to preside over the assembly of the Civil Chamber of the Supreme Court, the provisions of the Law on the Supreme Court, and therefore typical constitutional provisions, apply. It should also be emphasized that no provision of the Law on the Supreme Court provides a basis for applying regulations on administrative procedure to matters related to, for example, the election of the First President of the Supreme Court and the Presidents of the various Chambers.

These are serious arguments in favor of the thesis that, in accordance with Article 58.1.1 of the Law on Administrative Court Proceedings, the complaint against the President of the Republic dated August 17, 2024, No. 1131.18.2024 on the appointment of the chairman of the assembly of judges of the Civil Chamber of the Supreme Court should have been rejected on the grounds that the case does not fall within the jurisdiction of the administrative courts.

3. The problem of admissibility of a complaint to the administrative court against the countersignature of an official act of the President of the Republic itself and its possible “self-control” by the Prime Minister

While attempts to challenge official acts of the President of the Republic before administrative courts are quite common, an attempt to challenge the countersignature itself, in isolation from the countersigned act, is an unprecedented action. This procedure should be considered politically motivated, as the intention was only that the complaint be filed through the Prime Minister and not the President of the Republic.

An action that is only brought against the counter-signature itself is clearly inadmissible. This is due to the nature of countersignature as a constitutional institution. A lack of countersignature is instrumental in the official act having no legal effect[13]. However, it does not have an independent existence, and its legal significance cannot be analyzed in isolation from the countersigned official act. In essence, therefore, the complaint about the countersignature itself is an attempt to circumvent the law. It is similar to a situation where a complaint to the Provincial Administrative Court would concern the decision to publish the President’s order in the Monitor Polski – this is an action that has a legal effect, but it cannot be considered in isolation from the act itself.

As indicated, the complaint about the countersignature itself was made solely to achieve a political goal. The idea was that the complaint would not be received by the Office of the President of the Republic of Poland, but by the Office of the Prime Minister. This is indicated by the already quoted statement by Minister of Justice Adam Bodnar, according to whom the Prime Minister made “a decision to rescind the countersignature” pursuant to “probably Article 54 of the Law on Proceeding before Administrative Courts”[14]. This provision stipulates, among other things, that the authority whose action, inaction or protracted conduct of proceedings has been challenged may, within the scope of its jurisdiction, respond positively to the complaint in full within thirty days from the date of its receipt. However, this is not possible in the case of a countersignature, as this is an act of constitutional nature and not the performance of a public administration task. Countersignature – of course –
results in the entry into force of an official act, and also leads to the Prime Minister assuming political responsibility before the Sejm. The decision on the appointment of the chairman of the assembly of judges of the Civil Chamber of the Supreme Court is nonetheless an official act of the President of the Republic of Poland, so even if one were to accept the competence of the administrative court to examine the legality of this act and the legitimacy of the judges to bring it, the possible party to the administrative court proceedings would be the head of state, not the Prime Minister. Any self-auditing would therefore be done by Andrzej Duda. This, however, is not permissible, as the provision in question does not fall within the scope of the exercise of public administration.

The alleged revocation of the countersignature would also be a kind of way for the Prime Minister to evade political responsibility for co-signed official acts. Allowing the Prime Minister to rescind his countersignature would set a dangerous precedent. Indeed, one would just need to find someone ready to complain about a countersigned official act to exonerate the Prime Minister should such an act raise constitutional doubts. On the one hand, it is a convenient instrument not only for Donald Tusk, but also for all his successors, while on the other hand, it is a danger to the systemic foundations of the Polish political system and a blow to the rule of law.

4. Summary

The ad hoc purpose of the complaint against the countersignature was to create an ostensibly legal justification for Donald Tusk’s political actions related to the withdrawal of a decision, which had sparked outrage in circles that are the intellectual base of the Civic Coalition (KO) alliance led by his Civic Platform (PO) party. The far-reaching effects of such actions, however, are far more serious than simply preventing the appointment of a presiding judge in one of the Supreme Court’s chambers. They are about creating a legal ploy to circumvent the law by invoking a completely inadequate provision that could allow each Prime Minister to abrogate his own responsibility, which is assumed by the Prime Minister when countersigning official acts of the President of the Republic under Article 144(2) of the Polish Constitution. In essence, this would mean that a law can change the constitutionally regulated political accountability, reversing the hierarchy of sources of law and the constitutional logic adopted in the Polish Constitution of 1997. The reality, however, is that the signing of an official act of the President of the Republic by the Prime Minister is an act whose effects cannot be annulled under the provisions on administrative or administrative court proceedings, since the decision itself is a constitutional act not subject to review by administrative courts. If the possibility of rescinding the countersignature existed, then it would have to be regulated at the appropriate level. Moreover, a constitutional act of a political nature such as the countersigning of an act by the Prime Minister cannot be qualified either as a quasi-administrative decision or as a specific declaration of intent within the meaning of civil law. Hence, it was nonsense to invoke the regulations of the Civil Code on error or other defects in a declaration of intent. The countersignature is a constitutional act of a political nature – much like, for example, the President’s signature on a law. The alleged revocation of the countersignature was therefore another example of Prime Minister Donald Tusk’s violation of constitutional provisions.

Bartosz Zalewski

^[1] Monitor Polski. Official Gazette of the Republic of Poland, August 27, 2024, item 799.

^[2] B. Zalewski, “Repeal” of the countersignature – a precedent that will allow avoidance of responsibility? – https://ordoiuris.pl/wolnosci-obywatelskie/uchylenie-kontrasygnaty-precedens-ktory-umozliwi-ucieczke-od (accessed: November 29, 2024).

^[3] D. Sitnicka, M. Yaloszewski, Donald Tusk uchylił kontrasygnatę w sprawie neosędziego [Donald Tusk rescinds countersignature in matter of newly appointed judge] – https://oko.press/donald-tusk-uchylil-kontrasygnate-w-sprawie-neosedziego (accessed: December 1, 2024).

^[4] Tusk: Tusk: I made a decision to rescind the countersignature, TVN24 – https://tvn24.pl/polska/tusk-podjalem-decyzje-o-uchyleniu-kontrasygnaty-st8078430 (accessed: December 1, 2024).

^[5] Bodnar points to the “only moment” when the Prime Minister could rescind the countersignature – https://tvn24.pl/polska/donald-tusk-podjalem-decyzje-o-uchyleniu-kontrasygnaty-adam-bodnar-minister-sprawiedliwosci-i-prokurator-generalny-komentuje-st8078933 (accessed: December 1, 2024).

^[6] Cf. K. Kozlowski, commentary on Article 144, [in:] Konstytucja Rzeczypospolitej Polskiej, vol. II, Komentarz do art. 87-243, [ed.] M. Safjan, L. Bosek, Warsaw 2016, margin number 20.

^[7] R. Mojak, [in:] Polskie prawo konstytucyjne, [ed.] W. Wing, Lublin 2008, p. 312. Cf. also: A. Frankiewicz, Kontrasygnata jako wyznacznik systemu rządów, “Przegląd Prawa Konstytucyjnego” 2-3 (2010), p. 179.

^[8] See K. Kozlowski, op. cit., margin number 12.

^[9] See, for example, the decision of the Provincial Administrative Court in Warsaw of August 24, 2017, ref. IV SA/Wa 1274/17.

^[10] Order of the Supreme Administrative Court of October 17, 2012, ref. I OSK 1876/12.

^[11] Ibid.

^[12] See, for example, the decision of the Provincial Administrative Court in Warsaw of January 24, 2019, ref. VI SA/Wa 2287/18.

^[13] See the judgment of the Supreme Administrative Court of September 21, 2021, ref. II GOK 13/18.

^[14] Bodnar points to the “only moment” when the Prime Minister could rescind the countersignature – https://tvn24.pl/polska/donald-tusk-podjalem-decyzje-o-uchyleniu-kontrasygnaty-adam-bodnar-minister-sprawiedliwosci-i-prokurator-generalny-komentuje-st8078933 (accessed: December 1, 2024).