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  1. 3 Przegląd Sejmowy

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  1. 3 2009

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  1. 1 Banaszak B.

  2. 1 Garlicki L.

  3. 1 Zajadlo J.

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INTERNAL LEGITIMACY OF A CONSTITUTIONAL COURT (Wewnetrzna legitymacja sadu konstytucyjnego)

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Zajadlo J.
Przegląd Sejmowy
|
2009
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issue 4(93)
129-144
EN
The purpose of the article is to present the problem of legitimacy of a constitutional court not from the point of view of its powers and status within the system of government (an external perspective) but from the point of view of its actual composition (an internal perspective). The notion of internal legitimacy is meant by the author as a sum of the Tribunal's authority, knowledge, qualifications and experience of its judges, as well as the rules and principles used for their election. In the recent years, a lively discussion takes place in the world's literature on philosophy of law and constitutional law concerning the procedures for nomination and election of constitutional judges as well as the models for shaping the composition of organs exercising the review of constitutionality of laws. The author presents a current review of this problem on the basis of the US and German literature, focused in particular on the opinions criticizing an actual practice of nomination the judges to the US Supreme Court and to 'Bundesverfassungsgericht'. According to the author, the solutions adopted in the Constitution of the Republic of Poland and in the Constitutional Tribunal Act are unsatisfactory in the context of the need to create an internal legitimacy of an organ responsible for review of the constitutionality of laws. This concerns both the model of selection of candidates and the procedure for election of the judges of the Constitutional Tribunal, as well as substantive requirements applied to them. To address each of these problems the author uses, on the one hand, the method of 'veil of ignorance' proposed by John Rawls and, on the other hand, the theory of hard cases developed by Ronald Dworkin. In the conclusion, he states that, firstly, more requirements should be added for candidates for a position of a judge of constitutional court, to complement the one that they should 'be distinguished by their knowledge of law'; secondly, the circle of subjects entitled to nominate candidates should be broader than a group of Deputies or the Presidium of the Sejm; thirdly, the resolution concerning the election of the judges of the Tribunal should be adopted by a qualified majority of votes of Deputies. This is the only way in which internal legitimacy of an organ responsible for the review of constitutionality of laws may be created, since in such case the model of law application and interpretation differs considerably from the traditional court model.
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JUDICAL ACTIVISM OF THE CONSTITUTIONAL TRIBUNAL (Aktywizm orzeczniczy Trybunalu Konstytucyjnego)

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Banaszak B.
Przegląd Sejmowy
|
2009
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issue 4(93)
75-91
EN
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.
3
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NEW PHENOMENA IN THE CONSTITUTIONALITY REVIEW OF LAWS (A CONTRIBUTION TO THE DISCUSSION ON THE LEGITIMACY OF CONSTITUTIONAL COURTS) (Nowe zjawiska w kontroli konstytucyjnosci ustaw (przyczynek do dyskusji nad legitymizacja sadownictwa konstytucyjnego

100%
Garlicki L.
Przegląd Sejmowy
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2009
|
issue 4(93)
93-109
EN
The debate on the legitimacy of constitutional courts takes place more than two centuries and the positions of the supporters and opponents of constitutional protection of the constitution are widely known. That debate, however, is held in the changing political and constitutional contexts. This article deals with the question whether the evolution taking place in constitutional judiciary in the recent quarter of a century allows us to identify new trends converting the above-mentioned contexts. From this point of view, three phenomena seem to deserve more attention: - fast expansion of constitutional judiciary in the so-called new democracies in our region has provided new arguments for the need of a powerful and independent constitutional court; - the appearance of a 'weak-form' of constitutionality review in some Anglo-Saxon systems proved that it was possible to create an intermediate model that offers compromise between the traditional solutions; - development of jurisprudence of extra-national European courts has resulted in the appearance of a new form of review of laws by national courts, and thereby contributed to the departure from traditional understanding of sovereignty of parliament and inviolability of laws.
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