Fundamentally flawed assessment of the law by Mariusz Muszyński – A polemic

On 3 April 2019, Rzeczpospolita carried (in its traditional as well as online editions) an article by Prof. Mariusz Muszyński, Vice President of the Polish Constitutional Tribunal, under the evocative title “Judges from the Speaker of the Sejm”. In its context, the esteemed author asserts that “the procedure for appointment of judges post-1997 teems with errors and with doubts of a formal nature” which, in his view, may open the way to inveighing these individuals’ competence to sit judgement. In support of this thesis, Prof. Muszyński cites appointment by Bronisław Komorowski and by Grzegorz Schetyna, during the respective periods in 2010 when each one was serving as speaker of the lower chamber of Polish parliament – the Sejm in the aftermath of the death of President Lech Kaczyński, of a total of 179 judges of the general and administrative courts. As the author sees it, the speaker of the Sejm had no authority to appoint these judges, with the result that their appointment may be void of legal effect.

Quite apart from what is a praiseworthy conclusion of his article – the appeal to “put an end to this interpretational war which is undermining the institutions of the state” – I read the article by Prof. Muszyński as a substantive voice in the debate on application of the Polish Constitution. I would very much like to believe that this is a view clear of emotion and unmarred by political subtexts, one which endeavours a purely legal assessment of certain events transpiring in Polish polity in 2010. Adopting this

point of departure, I hope that I am not out of my place in voicing my own opinion of the views expressed by Prof. Muszyński in his article, as one lawyer addressing another, to take issue with what I consider to be a fundamentally flawed assessment of the applicable law.

But let’s take things one at a time. Prof. Muszyński’s doubts are rooted in art. 131 of the Polish Constitution, which regulates issues relating to “substitution” of the speaker of the Sejm for the President in certain situations, including death of the latter. The author does well to note that these constitutional provisions, in their essence, regulate temporary handling of the “duties” of head of state by the speaker of parliament. So far so good. In like spirit, it would be hard to challenge the logic of the interpretation that a “duty” is not the same thing as a “right” or a “competence” (to wit, we have the right to vote in elections, but the duty to pay taxes; the driver’s licence in your pocket confers certain rights, but it does not obligate you to only travel around by car) (…)

Full text is available (in Polish) on the website of Archiwum Osiatyńskiego.