The President’s agreement to the dismissal of the National Prosecutor is a guarantee of the independence of the Public Prosecution Service – wrote former Vice President of the Constitutional Court, Dr. Hab. Mariusz Muszyński.
Strange opinion of Prof. Chmaja! The appeal of the Public Prosecution Service is in the background
Former Vice President of the Constitutional Court Prof. Mariusz Muszyński, in a text shared online, criticized the legal opinion published by the Senate Chancellery, according to which the Prime Minister, at the request of the Attorney General, can dismiss the National Prosecutor without the consent of the President of the Republic of Poland.
Legal advice, written by Prof. Marek Chmaja (on the interpretation of Article 14 §1 of the Act of 28 January 2016 Public Prosecution Service Act in the context of Article 8, second paragraph, Article 144, second paragraph and Article 146, fourth paragraph of the Constitution of the Republic of Poland) presents conclusions, on the basis of which the dismissal by the National Prosecutor, in light of Art. 14 §1 pr. o the public prosecutor’s office applied insofar as it is in accordance with the Constitution of the Republic of Poland takes place as a result of the dismissal act performed by the President of the Prime Minister, at the request of the Prosecutor General.
“The granting of consent, the refusal to grant consent or the inability of the President of the Republic of Poland to take a position on the dismissal of the National Prosecutor has no legal significance. The resignation letter of the National Prosecutor will take effect as soon as it has been adopted by the Chairman of the Council of Ministers
– according to Chmaj’s opinion.
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“The consent of the President is a necessary condition for the validity of the act of dismissal.
In his blog post Mariusz Muszyński, former Vice President of the Constitutional Court proves this reasoning to be incorrect.
Muszyński notes, among other things: that Chmaj, in his opinion, “contrasts the powers of the Prime Minister with the powers of the President.”
But it ignores the fact that Art. 126 of the Constitution stipulates that the president is responsible for the security of the state. And this is the president’s power. In addition, the provision contains a reference to laws: the President carries out duties based on the principles established by the Constitution and laws (Article 126(3) of the Constitution). This is an even stronger power than deriving the Prime Minister’s powers from art. 146, because there is no power of the Prime Minister at all. These are the powers of the Council of Ministers. The author adds the Prime Minister here via art. 148 of the Constitution – the Prime Minister coordinates the work of the Council of Ministers. This is very weak and logically wrong. The coordination of work does not include the question of setting up bodies
– wrote Muszyński.
He added that the author of the opinion for the Senate “exaggerated the President’s acquiescence in the firing process as if it were the President himself who fired (and appointed) the National Prosecutor.”
Consent to dismissal does not imply establishment or dismissal from office. This is not a governing (causal) element, but a condition of the governing action. And how does the Sejm, with the consent of the Senate, create the Ombudsman? So who takes authority (appoints the Ombudsman)? – The Sejm, not the Senate. Only that the act without consent is ineffective
– added.
The Constitution is neutral with regard to the appointment of the prosecutor. The President’s authorization (to dismiss the National Prosecution Service – PAP) guarantees the independence of the Public Prosecution Service under the leadership of the National Prosecution Service. Therefore, the consent of the President is a necessary condition for the validity of the act of dismissal
— Muszyński wrote in the conclusion of his argument.
The participation of the President in the creation process, and especially the dismissal of the National Prosecutor, guarantees the independence of the latter and the entire Public Prosecutor’s Office, because it limits the arbitrariness and influence of the Minister of Justice-Attorney General on the selection of the National Prosecutor blocks. Prosecutor. If they don’t politically like certain actions of the Attorney General’s Office, they can simply fire him without the president’s approval.
– noted the lawyer.
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olnk/PAP
Source: wPolityce