REBUTTAL OF PRESUMPTION OF CONSTITUTIONALITY OF A NORMATIVE ACT BY THE CONSTITUTIONAL TRIBUNALS

• Authors: Radziewicz P.
• Languages of publication: PL

Abstracts

EN

The article is devoted to 'presumption of constitutionality' of laws, and particularly the application of this notion to the review of constitutionality of normative acts by the Constitutional Tribunal. The principle of presumption of constitutionality is important for both the participants to proceedings before the Tribunal, for whom it distributes the burden of proof, and the constitutional court itself, by establishing interpretative rules which shape the line of its decisions. For some time, a view has been established in the jurisprudence of the Constitutional Tribunal that rebuttal of 'presumption of constitutionality' of laws has a universal value (erga omnes applicability). From this point of view, 'presumption of constitutionality' should also be treated as a legal effect of a judgment finding hierarchical inconsistency of a legal provision, which may have potential impact on the sphere of rights and freedoms of the person and the practice of functioning of some organs of the State (including the common courts and administrative courts). Some exemplary questions which are connected with the above-mentioned issue may relate to: the meaning of the act of pronunciation of the judgment of the Constitutional Tribunal; the legal nature of 'presumption of constitutionality'; relations between rebuttal of 'presumption of constitutionality' of a law and the repeal of a legal provision; the effects of rebuttal of 'presumption of constitutionality' for the sphere of application of law. Moreover, the article deals with the following issues: the moment in which the effects of the judgment of the Constitutional Tribunal come into existence; direct application of the Constitution by common courts and administrative courts; justification of 'adjournment' (postponement) by the Tribunal of the date on which unconstitutional provisions lose their binding force as well as the departure by the constitutional court from the paradigm of a 'negative lawgiver'.

Keywords

EN

'NEGATIVE LAWGIVER'; CONSTITUTIONAL TRIBUNAL

Discipline

• LAW_&_ADMINISTRATION: LAW & ADMINISTRATION

• Publisher: Kancelaria Sejmu / Chancellery of the Sejm
• Journal: Przegląd Sejmowy
• Year: 2008
• Issue: 5(88)
• Pages: 55-87
• Document type: ARTICLE

Contributors

author

Radziewicz P.

• P. Radziewicz, Biuro Analiz Sejmowych, ul. Wiejska 4/6/8, 00-902 Warszawa, Poland

Identifiers

CEJSH db identifier

08PLAAAA053316