The President’s approval of dismissing the National Prosecutor is framed by a prominent legal scholar as a guarantee of the Public Prosecution Service’s independence. This view was shared in a judgment statement by former Vice President of the Constitutional Court, Dr. Hab. Mariusz Muszyński.
Questioning Prof. Chmaja’s stance while the appeal of the Public Prosecution Service remains in focus
Former Vice President of the Constitutional Court, Prof. Mariusz Muszyński, circulated online reflections critiquing the legal opinion issued by the Senate Chancellery. That opinion contends that the Prime Minister, with the Attorney General’s request, can dismiss the National Prosecutor without needing the President’s consent.
The legal note attributed to Prof. Marek Chmaja analyzes Article 14 §1 of the Public Prosecution Service Act of January 28, 2016, in conjunction with Article 8, second paragraph, Article 144, second paragraph, and Article 146, fourth paragraph of the Polish Constitution. It concludes that a dismissal by the National Prosecutor, when in harmony with the Constitution, could occur as a result of a dismissal act carried out by the President at the Prime Minister’s request and with the Prosecutor General’s involvement.
According to Chmaja’s opinion, the President’s consent, refusal, or the inability to respond holds no legal weight. The resignation of the National Prosecutor would take effect once endorsed by the Chairman of the Council of Ministers.
— as reported by Chmaj’s view.
Details also indicate a debate about whether Chmaj’s claims touched on the possibility of dismissing the president through a referendum, a topic previously touched upon by Wałęsa and now sparking online discussions and commentary.
“The President’s consent is presented as essential for a valid dismissal act”
In a blog post, Muszyński contends that this reasoning is flawed. He argues that Chmaj’s analysis contrasts the Prime Minister’s powers with those of the President, which, in his view, misreads the constitutional framework.
Muszyński highlights that Article 126 of the Constitution assigns the President responsibilities for national security. This foundation strengthens presidential powers beyond what the Prime Minister can exercise. The text also references Article 126(3), emphasizing that the President acts in alignment with constitutional and legal principles. Muszyński argues that Article 148 places the Prime Minister in charge of coordinating the Council of Ministers, not authorizing dismissals. The assertion that the Prime Minister could directly oversee or compel the firing of the National Prosecutor is seen as weak and mismatched with the constitutional structure.
The author maintains that the opinion overstates the President’s acquiescence in the firing process, suggesting that the President actively appoints or dismisses the National Prosecutor is an overreach.
Consent to dismissal is presented as a procedural condition rather than the source of authority. Muszyński compares the process to how the Sejm, with the Senate’s involvement, appoints the Ombudsman, indicating that the lack of consent could render an act ineffective rather than alter the balance of power.
The Constitution is viewed as neutral on the appointment of the prosecutor. The President’s authority to dismiss the National Prosecution Service is seen as a safeguard for independence within the Public Prosecution Service, ensuring that the process remains insulated from political pressure. Thus, Muszyński asserts that presidential consent remains a necessary condition for a valid dismissal act.
Muszyński argues that presidential participation in the appointment and dismissal dynamics of the National Prosecutor serves to anchor integrity and limit ministerial influence on prosecutorial leadership. If political disagreements arise with the Attorney General’s Office, the President would still be able to act with due regard to constitutional checks and balances, rather than acting unilaterally.
This debate continues to capture attention across legal and political circles, with several analyses and reactions circulating about constitutional solutions and their implications for the public prosecutions system in Poland. Analysts note the ongoing tension between different branches of government and how constitutional provisions translate into practical governance.
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– ONLY HERE. Szczucki argues that Chmaj’s idea exceeds constitutional bounds and that a lawyer must understand constitutional solutions
– ONLY HERE. A proposal of dismissal by referendum? Szrot calls the idea misguided and notes that Prof. Chmaj’s position has faced criticism
olnk/PAP
Attribution: discussions reflected in Polish legal commentary and public discourse