2009 | 4(93) | 75-91
Article title

JUDICAL ACTIVISM OF THE CONSTITUTIONAL TRIBUNAL (Aktywizm orzeczniczy Trybunalu Konstytucyjnego)

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Abstract: In the recent decades, there has been growing discussion in the democratic countries on the problem of judicial activism within the supreme and constitutional courts. The above-mentioned notion is generally recognized as a departure by the court beyond adjudicating individual cases, and as involvement in a broadly understood resolution of social problems or in shaping the concept of the state. Judicial activism of the Constitutional Tribunal within such a meaning existed in the first phase of Poland's transformation lasted from June 1989 to the adoption of the current Polish Constitution in 1997. During that period, the norms of the previous constitution, successively amended after 1989, were given - within the jurisprudence of the Constitutional Tribunal (and within jurisprudence of other courts and activities of supreme state authorities) - a new meaning which made it possible to apply solutions adjusted to the changing social circumstances. Therefore, necessary reforms could be implemented relatively quickly without a time-consuming work on modification of the constitution. Judicial activism of the Constitutional Tribunal has not yet been thoroughly examined in the Polish literature of constitutional law. The problems related to it are seldom recognized and discussed only in the context of other issues or in glosses to judgments. Judicial activism existing after the adoption of the 1997 Constitution is diversely appraised. Negative appraisals appeared rarely in the beginning of that period, and, over time, became more frequent. Excessive judicial activism of the Tribunal may lead to a situation in which the Tribunal will decide not only of the vision of the law-governed state, but rather of its particular solutions. It should be noted, that judicial decisions made by the Tribunal are no more subject to institutionalized legal review. Therefore, it is difficult to understand why these decisions, and not the decisions of the legislative power, would have priority and be more consistent with the expectations of the public. On the contrary, it is parliament itself, chosen in democratic way, that is - on its nature - better fit to articulate these expectations. Otherwise, it would be shown that the constitutional court occupies a central position within the system of government (as some authors imply on the basis of experiences of an increased judicial activism in some modern democracies). In Poland, the scope of judicial activism of the Constitutional Tribunal is not large enough to enable us to say that the above-mentioned threat is real.
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  • Boguslaw Banaszak, Uniwersytet Wroclawski, Wydzial Prawa, Administracji i Ekonomii , ul. Uniwersytecka 22/26, 50-145 Wroclaw, Poland
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