Bezpośrednie stosowanie Konstytucji przez organy administracji publicznej

• Authors: Roszkiewicz Janusz

Title variants

EN

Direct Application of the Constitution by Public Administration Bodies

• Languages of publication: PL

Abstracts

EN

The article treats about the dissembled matter of direct applicability of the Constitution by public administration bodies. It presents an alternative vision of administration with an active official being not only „the mouth of law” but the vital part of the mechanism. It seems that Polish legal system could actually be more efficacious and „citizen-friendly” provided that government administration, as well as the local authorities, become more aware of the significance of the norms, principles and values that Constitution embodies. Article 8 section 2 of the Polish Constitution sets forth that it shall be applied directly. Constitution does not provide any exceptions to this rule; hence, there are no legal circumstances to assume that only courts are authorized to do so. All in all, it appears that bodies of public administration are entitled to apply constitutional provisions but not as extensively as judges. First and foremost, administrative organs may make decisions based just on constitutional norms, provided that they are clear and precise enough. Article 78 guarantees each party to the proceedings the right to appeal against decisions of the first instance. If a statute does not unambiguously prescribe exceptions to this rule, the organ of the second instance is authorized to look into the party’s appeal directly on the basis of the Constitution. Secondly, the abovementioned bodies can also interpret administrative law pro-constitutionally e.g. by applying the principle in dubio pro tributario in tax cases. Moreover, they may refuse to apply specific provision of a statute, regulation or bylaw, in case the Constitutional Tribunal declares it unconstitutional. Tribunal’s judgment rebuts the presumption of constitutionality of such provision, even when it decides on the basis of article 190 section 3 of Constitution to postpone the date for the end of the binding force of thereof. Therefore, law that has been declared unconstitutional may not be applied by the administrative organs. But as opposed to the general and administrative courts, organs of public administration cannot refuse to apply provision of any absolute act of law on their own. Administrative officials, in contrary to judges, are not independent and they are not subject only to Constitution and statutes.

• Publisher: Kancelaria Prezesa Rady Ministrów
• Journal: Przegląd Legislacyjny
• Year: 2015
• Issue: PL 4(94)
• Pages: 57-77

Contributors

author

Roszkiewicz Janusz

• (Warszawa – Warsaw)